YAU PO SHAN v. THE EXPRESS LIFT CO LTD AND ANOTHER

DCPI2370/2014

[2020] HKDC 166

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO.2370 OF 2014

____________

BETWEEN
	YAU PO SHAN	Plaintiff
and
	THE EXPRESS LIFT COMPANY LIMITED	1st Defendant
	SYNERGIS MANAGEMENT SERVICES LIMITED	2nd Defendant

____________

Before: Deputy District Judge S.H. Lee

Dates of 1^st Defendant’s Submissions: 9 &30 January 2020

Date of Plaintiff’s Submissions: 24 January 2020

Date of Decision: 27 March 2020

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DECISION

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1.  This is my decision on paper disposal of 1^st defendant’s summons dated 6 Dec 2019 for leave to appeal (D1’s Summons) against my judgment dated 8 Nov 2019 in plaintiff’s favour against it (the Judgment)[1]. I adopt in this decision the same abbreviations in the Judgment.

2.  By the Judgment, I find D1 liable to pay damages to Ms Yau for injuries she sustained in the Accident.

3.  At the time of the Accident, Ms Yau was a passenger inside the Lift and D1 was the lift contractor responsible for the maintenance and repairs of the Lift. Upon reaching 2^nd floor, the Lift suddenly plunged at greater than its normal speed and jerked twice before it stopped and stalled violently at about 1 foot below the lobby floor causing a “bang” sound. Ms Yau got trapped in the Lift and was only released from it after firemen arrived to restore the Lift to ground level.

4.  I find that the Accident was caused by some contactor problem (接觸點) of the KVAB Relay (繼電器), a relay for drive motion signaling, of the Lift. The said KVAB Relay was replaced by Wong after, and on the same day of, the Accident: para 63, 64, 66-68 of the Judgment. But the reason why the said KVAB Relay failed, or why there was contactor problem, on the day of the Accident remains unknown: para 90 of the Judgment.

5.  In the Judgment, this court finds the Doctrine applicable, the plaintiff making out a prima facie of negligence against D1, such a case not having been rebutted, and drew an inference of negligence against D1 for failing to have inspected the Lift, including its KVAB Relay, and/or kept it maintained properly, in time or at all: para 109, 117-120 of the Judgment.

6.  D1 now seeks leave to appeal in order to reverse my finding of liability against it in the Judgment on 3 grounds settled by its counsel Mr Jackson Poon (Mr Poon) and set out in its draft notice of appeal annexed to D1’s Summons.

7.  By s.63A(2) of District Court Ordinance, Cap.336, leave to appeal shall not be granted unless 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.

8.  I reproduce below the said 3 grounds in full and deal with each of them in turn, starting with the 2^nd ground.

Ground 2

There is no expert evidence to show: - (a) when the KVAB Relay became defective; (b) whether the problem of the KVAB Relay could be detected before the Accident by a professional technician of ordinary skill; (c) whether the Accident could have been avoided by examination of the lift by a professional technician of ordinary skill (Please see, inter alia, paras 63-69, 90, 94-95, 103-104, 111, 114(1) of the Judgment).

9.  Mr Poon has, I think, merely pointed out lack of expert evidence in this 2^nd ground. He has not identified any error allegedly made in the Judgment which warrants the Court of Appeal to interfere with my finding of liability against D1. As such, this 2^nd ground does not begin to have any prospect at all.

10.  In any event, such lack of expert (and other) evidence was recognized by this court: para 2-5 of the Judgment. Absent such evidence, Mr Lung appearing for Ms Yau at trial relied instead on the Doctrine: para 116 of the Judgment. The Doctrine is a mode of inferential reasoning, with the burden of proof remaining with the plaintiff at all times: para 75-77 of the Judgment.

11.  In his submissions on this 2^nd ground (and also 1^st ground), Mr Poon addressed this court much, and submitted several authorities[2], on standard of care, including that of professional negligence. With respect, such submissions are, I think, neither here nor there.

12.  First, the focus of submissions of Mr Lo appearing for D1 at trial has never been on standard of care to be expected from D1. Rather, he submitted that 2 conditions for the Doctrine to apply have not been met and, if the Doctrine applies at all, any prima facie case so raised has been neutralized by D1: para 6(1), 7 & 8 of the Judgment.

13.  Secondly, Mr Poon has also, I think, not identified either in the 2^nd ground (or in the 1^st ground) any alleged error made in the Judgment on standard of care.

14.  Thirdly, this court was well aware in the Judgment that:

(1)  Plaintiff’s case against D1 is a case of negligence, and not strict liability: para 7, 72, 74 & 120 of the Judgment;

(2)  D1’s 2^nd line of defence is that such prima facie case, if any, raised on the Doctrine has been neutralized by D1 having taken reasonable care in maintaining the Lift: para 8 & 110 of the Judgment;

(3)  Lift maintenance is works of a highly technical nature that only authorized persons can undertake under prevailing legislation: para 152 of the Judgment; and

(4)  D1 was at all material times a registered lift contractor with the necessary qualified personnel: para 23 & 112 of the Judgment.

15.  This 2^nd ground has thus, I think, no reasonable prospect of success at all.

Ground 3

Replacing the defective KVAB Relay after the Accident cannot be used as evidence of negligence (Please see, inter alia, paras 103-4 of the Judgment)

16.  Mr Poon next submitted that measures taken after accident is at law not evidence of negligence.

17.  Such improvement by way of replacing the KVAB Relay of the Lift made by Wong on the day of the Accident cannot, he submitted, be used by this court as evidence of negligence.

18.  Mr Poon cited several authorities[3] to the effect that additional precaution taken after accident with the benefit of hindsight does not by itself prove negligence at the time of the accident, as it is always easy to be wise after the event.

19.  I agree with Mr Leon Ho now instructed for Ms Yau (Mr Ho) that this 3^rd ground is plainly misconceived.

20.  The KVAB Relay was, I find, a component or control equipment of the control system (控制系統) of the Lift situated inside control cabinet (控制櫃) of its machinery room (機房): para 67 & 104(1) of the Judgment.

21.  Before the Accident, D1 had, I find, alreadyrecognizedproblems with the control system of the lifts of the Estate, including KVAB Relay, and suggested renewal works in the Report: para 19-21, 104(2) & 126 of the Judgment.

22.  Specific provisions have, I find, already been introduced for the first time in the Tender Documents signed by D1 before the Accident (and in the 2011 Contract effective as from the day of the Accident) for D1 to arrange periodic examination of the KVAB Relay by way of its contractual obligation of maintaining, inter alia, the Lift: para 32-34, 36(2), 37(3), (5), (6) & 104(3) of the Judgment.

23.  Hence, this court finds D1 under a duty of care at common law to Ms Yau as passenger of the Lift to inspect the Lift, including its KVAB Relay, properly and to keep it properly maintained to protect her health and safety: para 72 & 73 of the Judgment.

24.  On the day of the Accident, Wong, I find, attended the Estate, inspected and repaired the Lift, and replaced its KVAB Relay, by way of discharging D1’s duties of providing ad hoc maintenance in response of request from D2 after Ms Yau and others were trapped in, and rescued from, the Lift: para 60 & 62 of the Judgment.

25.  Thus, D1 knewbefore the Accident that it was obliged to maintainthe KVAB Relay of the Lift to keep the Lift properly functioning on the day of the Accident. Wong did not replace the KVAB Relay on the day of the Accident as improvement or additional precaution to the Lift to guard against similar accident in future. There was no question of D1 being wise after the Accident.

26.  The facts of those authorities cited by Mr Poon are, I think, far removed from those of this case. For the proposition of law he derived from them, they deal with, again, standard of care not complained of in the draft notice of appeal.

27.  Further, I think Mr Poon had misread para 103 of the Judgment. The said paragraph was made in response to Mr Lo’s submission at para 94 of the Judgment that the word “defective” was not found in the Accident Entry. The emphasis of this court is not on the act of replacing the KVAB Relay itself but on its alternatives and the timing of such replacement.

28.  Mr Poon had also, I think, misread para 104(5) of the Judgment, where the focus of this court is, again, not on the act of replacing KVAB Relay itself but rather the discoverability of the contactor problem of KVAB Relay being the cause of the Accident by Wong and the relatively short time taken by him to so discover and sort it out by replacement (with emphasis already made by this court in italics to the said paragraph).

29.  Such circumstances in italics to para 104(5) of the Judgment are used by this court as one of many circumstances, including those in para 104(1)-(4) of the Judgment, to show that:

(1)  this is not a case of defective component per se as submitted by Mr Lai appearing for D2 at trial or a case of mere failure of KVAB Relay as submitted by Mr Lo: para 94 & 95 of the Judgment; and

(2)  condition (1) of the Doctrine has been met i.e. the Accident was an occurrence that would not have happened without negligence on the part of D1 in terms of inspection, maintenance and repair of the Lift, including its KVAB Relay: para 107 & 108 of the Judgment.

30.  Hence, this court has never used the act of replacing the KVAB Relay of the Lift after the Accident itself as evidence of negligence as submitted by Mr Poon.

31.  The 3^rd ground has therefore, I think, no reasonable prospect of success either.

Ground 1

The findings in the Judgment show that D1 had properly examined the lift in 5 occasions in Oct 2014, the month preceding the Accident. Therefore, D1 had exercised reasonable care and the Doctrine should not be used against D1 (Please see, inter alia, paras 75, 150(3)-(6), 151 of the Judgment)

32.  Mr Poon submitted that the findings of the Judgment show that D1 had properly examined the Lift on 15, 17, 23, 28 & 29 Oct 2011. According to the Logbook, qualified staff of D1 had carried out inspection on the above 5 occasions, discovered the source of problem and took repair works to rectify the discovered problem correctly. He laid particular emphasis to para 150(5) of the Judgment.

33.  The evidence, he submitted, shows that the KVAB Relay failure could not have been discovered and prevented in advance despite there were proper inspections and maintenance by qualified personnel on these 5 occasions. He also laid particular emphasis to para 150(6) of the Judgment.

34.  There is, he submitted, no evidence from plaintiff to show that the KVAB Relay failure could have been detected and prevented by a competent technician before the Accident.

35.  Hence, it is submitted that D1 had exercised reasonable case and the Doctrine should have been rebutted.

36.  This 1^st ground is, I think, also without merit.

37.  As Mr Poon relied on para 150 & 151 of the Judgment for this 1^st ground, I think he referred to the 5 Incidents on 16, 17, 22, 28 & 29 Oct 2011. On each of the 5 Incidents, according to entries of the Logbook, passengers were trapped in the Lift and later rescued by firemen, and that D1 had sent staff attending to the Lift, with Wong attending on 17 Oct 2011: para 46 & 47 of the Judgment.

38.  I think Mr Poon had again misread para 150 & 151 of the Judgment, which were made in response to Mr Lung’s submissions at para 144 & 147 of the Judgment.

39.  Anyone who reads column (5)[4] of the 5 entries on the dates of the 5 Incidents of the Logbook would notice that problems or parts other than KVAB Relay (collectively Other Problems) were put down by D1’s attending staff as the sources of the problem, or reasons for the breakdown, of the Lift on the 5 Incidents.

40.  In gist, Mr Lung submitted at para 144 & 147 of the Judgment that D1’s attending staff on each of the 5 Incidents, including Wong attending on 17 Oct 2011, gave “incorrect diagnosis” of Other Problems on the Logbook, and gave “incorrect repairs” to the Lift, when in truth the Lift suffered from the same and common root problem of KVAB Relay failure that went “undetected and uncured” on each of the 5 Incidents.

41.  This court rejected Mr Lung’s submissions above by giving 8 reasons at para 150 of the Judgment and found at para 150 & 151 of the Judgment that:

(1)  the Other Problems put down in the Logbook by D1’s attending staff were indeed the “correct” reasons for the breakdown of the Lift on the 5 Incidents;

(2)  proper parts or works had indeed been replaced or done after the 5 Incidents as proper response to the Other Problems;

(3)  the 5 Incidents had thus their known causes i.e. Other Problems different from that of KVAB Relay failure put down by Wong in the Logbook as the cause of the Accident; and

(4)  there is nocommon or same root cause of KVAB Relay failure for the 5 Incidents (and the Accident) as submitted by Mr Lung.

42.  Specifically, at para 150(5) & 150(6) of the Judgment, this court was giving its reasons that:

(1)  D1’s attending staff on the dates of the 5 Incidents had sufficient qualification and enough time to discover correctly Other Problems they had put down in the Logbook as the reasons for the breakdown of the Lift and to rectify such problems properly, as Wong did identify correctly KVAB Relay failure, and put it down correctly on the Logbook, as the reason for the breakdown of the Lift on the day of the Accident; and

(2)  Given that Wong was able to discover (as plaintiff accepts) correctly KVAB Relay failure as the cause for the Accident (and within arelatively short period of 7 hours on the same day), he should also have identified it as the cause of the breakdown of the Lift on 17 Oct 2011 had it been the true cause on that day as submitted by Mr Lung. The fact that Wong did not do so on 17 Oct 2011 suggests that KVAB Relay failure was not such cause on 17 Oct 2011.

43.  Hence, on my findings at para 150 & 151 of the Judgment set out above, the 5 entries of the 5 Incidents on the Logbook do not show at all that D1’s attending qualified staff, including Wong on 17 Oct 2011, had inspected the KVAB Relay of the Lift on the dates of the 5 Incidents and,even if they do, they do not show either how they had gone about doing that. These 5 entries at best only showed Other Problems having being discovered and dealt with!

44.  As this court pointed out at para 114 of the Judgment and as Mr Ho stressed in submissions, save except for the Test Report more than 7 months before the Accident but not specifically covering KVAB Relay, there is no evidence of the detailed works and manner of maintenance, inspection, examination, testing and repairs that were actually carried out by D1 on the Lift and its KVAB Relay at all material times before the Accident. Read correctly, my findings at para 150 & 151 of the Judgment regarding such entries in the Logbook for the 5 Incidents cannot, and do not, fill the said evidential gap.

45.  Therefore, D1 had, I think, plainly failed to adduce evidence of its regular and proper inspection and maintenance of the Lift, including its KVAB Relay, at all material times before the Accident that is capable of rebutting the prima facie case raised against it by the Doctrine as this court concluded at para 118 of the Judgment.

46.  This 1^st ground holds, I think, no reasonable prospect of success too.

47.  For sake of completeness, there is, I think, no other reason why D1’s appeal should be heard in the interests of justice.

Disposition

48.  I dismiss D1’s Summons and make an order nisi that D1 do pay the plaintiff the costs of and incidental to D1’s Summons with certificate for counsel, to be taxed if not agreed.

49.  Finally, I thank Mr Poon and Mr Ho for their submissions.

(LEE Siu-ho) Deputy District Judge

Written Submissions by Mr Leon Ho (instructed by Messrs. K. H. Teh & Co.) for the Plaintiff

Written Submissions by Mr Jackson Poon (instructed by Messrs. Huen & Partners) for the 1^stDefendant

DCPI2370/2014

[2020] HKDC 165

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO.2370 OF 2014

____________

BETWEEN
	YAU PO SHAN	Plaintiff
and
	THE EXPRESS LIFT COMPANY LIMITED	1st Defendant
	SYNERGIS MANAGEMENT SERVICES LIMITED	2nd Defendant

____________

Before: Deputy District Judge S.H. Lee

Dates of Plaintiff’s Submissions: 9 January, 3 February & 19 March 2020

Dates of 1^st Defendant’s Submissions: 23 January & 19 March 2020

Date of 2^nd Defendant’s Submissions:  10 January 2020

Date of Judgment: 27 March 2020

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JUDGMENT ON COSTS

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Introduction

1.  Following a 3-day trial of this action from 25 to 27 Feb 2019, I reserved my judgment. All parties then agreed that submissions on costs be made after my judgment is handed down.

2.  By my judgment handed down on 8 Nov 2019 (the Judgment)[1], I enter judgment in favour of plaintiff (P) against the 1^st defendant (D1) in sum of $206,610 together with interest[2] and I dismiss P’s claim against the 2^nd defendant (D2)[3]. And I find it unnecessary in the Judgment to decide on contribution proceedings issued by D2 against D1 (the Contribution Proceedings)[4].

3.  I direct in the Judgment that parties concerned do endeavor to agree on costs of main action and on disposition of, and costs of, the Contribution Proceedings.

4.  By parties’ joint letter to court dated 11 Dec 2019, P and D1 agreed that, in the main action, P is entitled to costs from D1 with certificate for one counsel.

5.  All parties have thereafter made written submission on outstanding issues in line with court directions dated 16 Dec 2019. D1 and D2 agreed later that there be no order on the Contribution Proceedings by way of its disposition.

Outstanding Issues

6.  What remains to be decided by this court are 3 issues, namely, whether or not: -

(1)  D1 is liable to pay P’s costs of main action on indemnity basis and/or with interest(and also enhanced intereston judgment P obtained againstD1) as contended by P for alleged sanctioned offers made by P to D1 and allegedly beaten by P after trial (Issue 1);

(2)  D2’s costs of main action should, as contended by P, be paid by D1 by way of a Sanderson order (D2 being neutral on that) or such other order this court sees fit to make, or should be borne and paid for by P as contended by D1 (Issue 2);

(3)  D2’s costs of the Contribution Proceedings should, as contended for by D2, be paid by D1 with certificate for counsel or that there should be no order as to costs of the Contribution Proceedings as submitted by D1 (Issue 3).

7.  This 2^nd judgment on costs is my paper disposal of Issues 1 to 3 pursuant to consent of the parties concerned. Unless otherwise stated, abbreviations in the Judgment shall be adopted here. Affidavit evidence has been filed by parties concerned on Issues 1 to 3 and they shall be referred to below as and when it is necessary.

Submissions on Issue 1

8.  In support of her claim, P relies on her solicitors’ letter dated 23 Mar 2018 marked “sanctioned offer” (the 1^st Letter) making an offer of $200,000 (inclusive of interest) “plus costs and disbursements to be taxed if not agreed” in full and final settlement of her whole claim (the 1^st Offer) which D1 did not respond.

9.  P next relies on another letter of her solicitors dated 14 May 2018 also marked “sanctioned offer” (the 2^nd Letter) making a reduced offer of $160,000 (inclusive of interest) “plus costs and disbursements to be taxed if not agreed” in full and final settlement of her whole claim (the 2^nd Offer) which D1 did not respond.

10.  P contended the 1^st and 2^nd Offers are valid sanctioned offer under O.22, Rules of District Court, Cap.336H[5], that P did better than them after trial, and, pursuant to O.22 r.24, she shall be entitled to indemnity costs, enhanced interest on judgment and interest on costs as from expiry of the respective deadlines of their acceptance without requiring the leave of the court.

11.  P asks this court for

i)  interest on damages awarded at 6% above judgment rate from 21 Apr 2018 to 11 June 2018, and at 10% above judgment rate from 12 June 2018 to 8 Nov 2019;

ii)  costs on indemnity basis from 21 Apr 2018; and

iii)  interest on costs at 2% above judgment rate from 21 Apr 2018 until full payment.

12.  D1 submitted that the 1^st and 2^nd Offers are not valid sanctioned offers for following reasons.

(1)  They contained the same costs term of “plus costs and disbursements to be taxed if not agreed”.

(2)  They were jointly made and addressed to D1 & D2, with a draft Consent Order to be signed by all 3 parties annexed to the 2^nd Letter. Acceptance of the 1^st and 2^nd Offers could happen, D1 argued, if and only if both defendants (which had competing interest and were separately represented) reached an agreement on them, including on their respective proportion of payment. D1, it was said, could not have agreed to them on behalf of D2. And D1 could not itself have protected D1’s position on costs as D2’s consent was required.

(3)  There was, said D1, uncertainty regarding costs as between P and D2, whether D2 agrees to pay P’s costs and the proportion of P’s costs each defendant agrees to pay.

13.  P had not, D1 also argued, done better than the 1^st and 2^nd Offers as the 2 offers required D2 to pay P’s costs while the Judgment means that it is not necessary for D2 to pay P’s costs.

14.  D1 further submitted that it is unjust to award indemnity costs as sought by P because, on the dates of the 1^st and 2^nd Letters, D1 thought that (and that is information, argued D1, then available to the parties) Wong would give evidence for it, but Wong has by trial left D1 and was no longer willing to testify for it.

15.  D1 submitted that it is also unjust to award indemnity costs as P had exaggerated her claim in terms of quantum with this court awarding her in the Judgment total damages at a sum less than 1/3 of her total claim in RSOD.

16.  If additional interest on award is called for, a rate of about 2% above judgment rate may, D1 submitted, be considered and it shall only be up to judgment.

Discussions on Issue 1

17.  D1 relied on Wong Yim Man Anthea v Wong Ho Ming Felix [2016] 3 HKLRD 249 to submit that the 1^st and 2^nd Offers, containing the costs terms as they did, are not valid sanctioned offer within O.22. I disagree.

18.  Wong Yim Man Anthea, supra, can, I think, be distinguished as defendant’s offer therein proposing “no orderas to costs of this action” effectively prevents the costs consequences on its acceptance specified under O.22 r.20[6]. An offer with such a costs term therefore cannot be accommodated in O.22 regime by reason of its irreconcilable conflict with O.22 r.20(1)[7].

19.  Wong Yim Man Anthea, supra,is not authority for the proposition that a valid sanctioned offer can never include a term as to costs as such. It is only if the term as to costs conflicts with the costs consequence prescribed by some rule(s) in O.22 that the sanctioned offer will be rendered invalid: “Xin Nan Tai 77”, unreported, HCAJ 48/2011, 30 November 2017, para 28 & 29.

20.  The costs term of ““plus costs and disbursements to be taxed if not agreed” in the 1^st and 2^nd Offers can, I think, readily be construed and should be construed to validate the 2 offers to refer to costs consequences specified under O.22 r.21(1) on acceptance of plaintiff’s sanctioned offer i.e. P is entitled to her costs of the proceedings up to the date upon which the defendant serves notice of acceptance: see Dutton v Minards [2015] EWCA Civ 984, para 28-34; Neave v Neave [2003] EWCA Civ 325, para 19, 20 & 32.

21.  There is, I think, no irreconcilable conflict of the said costs term of the 1^st and 2^nd Offers with O.22 r.21(1) or the regime of O.22 in terms of costs.

22.  It appears that D1 also relied on Wong Yim Man Anthea, supra, to argue that the 1^st and 2^nd Offers are invalid sanctioned offer as they are made to D1 and D2 jointly requiring their jointacceptance. Such argument by reference to Wong Yim Man Anthea, supra, is, I think, misplaced. On its facts, the case was never so decided to suggest such proposition now advanced by D1.

23.  Significantly, D1 refers to no order, no rule and no other authority to seek to persuade this court that a sanctioned offer cannot be made by a plaintiff to more than one defendant jointly, or that such an offer conflicts with any particular rule of O.22 and cannot be accommodated within the regime of O.22.

24.  I tend to agree with P that a valid sanctioned offer can be made by a plaintiff to more than one defendant jointly but I would leave that for future decision if it is really required.

25.  The reason is that, irrespective of the position of the 2^nd Offer, I am satisfied that the 1^st Offer contained in the 1^st Letter was not an offer made to D1 and D2 jointly as contended by D1 and thus D1’s objection to the 1^st Offer on such ground has no basis at all.

26.  Though the 2^nd Letter contained “for your consideration and comments” a draft consent order, whose contents require both D1 and D2 to pay P settlement sum and to pay P’s costs of the action in order to obtain both their discharge and whose body requires it to be signed by all 3 parties, the 1^st Letter contained no such draft consent order.

27.  By the 1^st Letter, P’s solicitors were, I think, simply making the same 1^st Offer to D1 and D2 at the same time by addressing their respective solicitors on the same occasion. P’s solicitors nowhere wrote in the 1^st Letter that it was a term of the 1^st Offer that it must be accepted by both defendants jointly. At its 2^nd last paragraph, P’s solicitors used, I note, the singular word of “client” after the word “respective” to indicate that either D1 or D2 could have accepted the 1^st Offer on its own within time or out of time.

28.  Hence, the 1^st Offer can, I think, readily be construed and should be construed to validate it (if required at all) as a sanctioned offer of the same terms made on the same occasion of the 1^st Letter to D1 and D2 separately and open to either acceptance. In other words, D1 could have, I think, without any consent from D2, agreed to the terms of, and accepted, the 1^st Offer on its own as the 1^st Offer was also made in the 1^st Letter to D1 separately.

29.  Had D1 itself accepted the 1^st Offer on its own within time, the costs consequences specified under O.22 r.21(1) shall automatically, I think, apply as between P and D1.

30.  O.22 r.13 will, I think, also come into play to require D1 to serve its notice of acceptance of the 1^st Offer on D2 at the same time of serving it on P, such that D2 could apply for directions as to any question of costs between it and D1 and for other directions relating to the said acceptance.

31.  And such stay arising from D1’s acceptance of the 1^st Offer does not affect the power of the court to deal with any question of costs relating to the proceedings: see O.22 r.22(5)(b).

32.  Thus, there is, I think, no question of uncertainty regarding costs as between P and D2, between D1 and D2, or respective proportion of payment by each defendant as contended by D1.

33.  I therefore find the 1^st Offer a valid sanctioned offer.

34.  Contrary to D1’s suggestion, on my construction of the 1^st Offer made to D1 and D2 separately on the same occasion of the 1^st Letter, this sanctioned offer does not require D2 to pay P’s costs (or damages to P) on D1’s acceptance of it.

35.  Moreover, the words “judgment” and “held liable” in O.22 r.24(1) connote what the trial judge holds or decides on the substantive issues in the case as distinct from the ancillary issue of costs to be determined after the substantive issues are decided: Sunbeam Investment Ltd v IO Villa Veneto [2011] 1 HKC 86, 96D-E, H, 98G-H.

36.  Disregarding the ancillary issue of costs in line with Sunbeam Investment Ltd, supra, I enter a judgment of $206,610 with interest against D1 in the Judgment. This “judgment” must, I think, be “more advantageous” to P than (and D1 has certainly, I think, been “held liable” for more than) the proposal of $200,000 (inclusive of interest) contained in the 1^st Offer as per the wordings of O.22 r.24. Putting aside interest, P has, I think, beaten the 1^st Offer by $6,610.

37.  In my views, O.22 r.24 is thus triggered by the 1^st Offer, if not also by the 2^nd Offer.

38.  By O.22 r.24(4) & (5), this court shall make the orders in r.24(2) & (3) unless it considers it unjust to do so after taking into account all the circumstances of the case, including 4 matters specified in r.24(5)(a)-(d).

39.  Regarding unavailability of Wong as D1’s witness at trial, Mr Lo appearing for D1 at trial informed this court on day 1 that Wong left D1 as early as in July 2016 and that D1’s solicitors were recently advised by Wong that he was no longer willing to testify for D1[8].

40.  So, on the date of the 1^st Offer i.e. 23 Mar 2018, I think D1 had (or ought to have) already known of Wong’s departure and the risk of him not giving evidence for it voluntarily at trial. Moreover, D1 could, if it so desires, apply for subpoena to be issued to ensure Wong giving evidence for it at trial.

41.  In any event, this risk of Wong not coming forward as D1’s witness at trial is, I think, ordinary litigation risk that every litigant faces (and that D1 ought to have taken this risk into account in assessing the 1^st Offer made by P).

42.  This issue of Wong giving evidence for D1 is, I think, entirely an internal affair of D1 and there is absolutely no question of P withholding any material information from D1. Considering the progress of this action by the date of the 1^st Offer[9], D1 had by then, I think, adequate information at its disposal to evaluate the 1^st Offer.

43.  Regarding the quantum of damages awarded to P in the Judgment, Mr Lung appearing for P at trial had, I think, sensibly reduced P’s PSLA claim from $350,000 in RSOD to $180,000 to $220,000 at trial. This court at the end of the day allowed $180,000 and rejected D1’s suggestion of $100,000[10]. Mr Lung also sensibly, I think, abandoned P’s claim for costs of future surgery[11].

44.  It is true that this court has reduced P’s claim for special damages[12] and dismissed P’s claim for loss of earning capacity[13]. But this court also rejected D1’s submissions against P’s entitlement to recover consultation fee she paid Dr Chang in Mar 2012 and such sums she spent in chiropractic treatment[14].

45.  In terms of time spent at trial, the evidence of P was, I think, relatively short and P’s case was finished within day 1. Hence, notwithstanding the above matters urged by D1, the time of this court at trial was not wasted (indeed, this action was finished within 3 days of its 4-day fixture time). And this court nowhere in the Judgment found P a malingerer[15].

46.  It is true that P recovered in the Judgment by way of total damages at a sum less than 1/3 of that she sought in RSOD. But, what is important, I agree with the similar analysis in Ng Yuek Lang Sophia v Chiu King Wa [2019] 4 HKLRD 364, 369-371, is that my total award to P (after so many reductions and deductions above) still exceeds the 1^st Offer by no small margin and that D1 had never accepted the 1^st Offer to avoid trial (indeed, D1 did not make any counter-offer or sanctioned payment on the affidavits filed before me).

47.  All the circumstances of the case, including all such matters above urged by D1, having been considered, I do not find it unjust to make the orders sought by P under O.22 r.24(2) & (3).

48.  All thing considered, I order D1 to pay P: -

(1)  interest on damages of $206,610 awarded to P at 6% above judgment rate from 21 Apr 2018 until the Judgment;

(2)  P’s costs of the main action after 21 Apr 2018 on indemnity basis; and

(3)  interest on P’s costs in (2) above at 5% p.a. from 21 Apr 2018 until this 2^nd judgment on costs.

Submissions on Issue 2

49.  P submitted that a Sanderson order is appropriate as it was reasonable in all the circumstances of this case for her to join D2 to these proceedings for the following reasons.

(1)  D2 plainly owed common duty of care to P as occupier of the Lift and was an obvious defendant.

(2)  Despite letters in 2014 to D1, D2 and D2’s insurer, P could not obtain relevant document on internal arrangement between D1 and D2 on the Lift, and P did not know that the Lift failed in the Accident because of KVAB Relay failure.

50.  It is, further submitted by P, reasonable for her to continue her claim against D2 for the following reasons.

(1)  D1 denied liability and refused to accept P’s offers.

(2)  There is, argued P, real risk that D1 can rely on technical arguments to defend the issue on liability.

(3)  D1 also shifted the blame on D2 in its Amended Defence in the Contribution Proceedings.

(4)  In view of the 5 Incidents that happened shortly before the Accident, CP Wong also agreed at trial that a responsible manager would undertake a thorough examination of the Lift.

51.  At all stages of these proceedings, there existed, argued P, sufficient uncertainty and doubt in the evidence that it was reasonable for P to claim against D2.

52.  If P is to bear D2’s costs, her entire award, it was argued, will most likely be applied for that purpose and justice demands that a Sanderson order be made so that damages awarded to her would truly go to compensate her loss as a result of the Accident.

53.  If this court is not minded to make a Sanderson order, P asks that a Bullock order be made against D1.

54.  D1 submitted that it had never put any blame on D2 in its Amended Defence. In its Amended Defence in the Contribution Proceedings, D1 had just reiterated P’s allegations against D2 and did not make any new allegation on its own.

55.  There is, argued D1, no evidence to suggest any real risk that D1 may either be absolved from liability or unable to satisfy any judgment that P may obtain against it, as D1 was insured under its maintenance contract in relation to the Lift.

56.  D1 submitted that the evidence indicated that D2 had already fulfilled its duty such that P should not have joined D2 to these proceedings. P should, said D1, pay for her wrong decision to sue D2.

57.  D1 should not, argued D1, be penalized for D2’s early failure to disclose documents to P and, after such documents were made available, P should have analyzed her case and discontinue her claim against D2. D1 should not be asked to pay for P’s wrong decision to continue suing D2.

Discussions on Issue 2

58.  For the applicable principles on this issue, I refer to Chong Ngan Seng v China Harbour Eng Co Ltd & others, unreported, CACV 54/2012, 25 Sept 2013, para 6 & 7, which say: -

“In deciding whether to make a Sanderson or Bullock order and, if so, which of the two orders to make, the court is exercising its discretion… in deciding whether to exercise that discretion, the court looks to see whether it was reasonable in all the circumstances of the case for the plaintiff to join the successful defendant in the action…”

59.  Another recent restatement of the principles is, I think, para 6 of the judgment of Bharwaney J. in Fung Chun Man v Hospital Authority, unreported, HCPI 1113/2006, 20 Feb 2012, which reads: -

“The classic case where a Sanderson or Bullock order is made is where the unsuccessful defendant blames the successful defendant and causes the plaintiff either to join the successful defendant or to continue the proceedings against the successful defendant. However, even absent such circumstances, it may be reasonable for the plaintiff to join the unsuccessful defendant, in cases where the plaintiff is faced with a denial of liability by the unsuccessful defendant and the real risk that the unsuccessful defendant may either be absolved from liability or unable to satisfy any judgment that may be obtained against him. In such circumstances, if the plaintiff is in possession of evidence that can implicate the successful defendant, evidence that is neither tenuous nor speculative nor far-fetched, it would be reasonable for the plaintiff to join or to proceed against the successful defendant and the court, at the conclusion of such a case, may, in the exercise of its discretion over costs, make a Sanderson or Bullock order”

The above restatement was recently quoted at para 27 of Lai Yau Tai v Moral Accord Ltd & others[2019] HKDC 1316 cited by D1.

60.  In deciding on the question of reasonableness, the court must not lose sight of the uncertainties that surround a case at its earlier stages prior to trial or capitulation: Leung Lai-ha & another v Hon Sau-ling & another [1993] 1 HKLR 86, 91.

61.  Focusing on the earliest stage of these proceedings up to P’s filing of Statement of Claim in Aug 2015, I agree with P’s submissions that P was uncertain about the cause of the Accident and the internal arrangement between D1 and D2 regarding the Lift and that it was reasonable for her to join D2 to these proceedings for the following reasons.

(1)  As a passenger within the Lift at the time of the Accident and absent any investigation report on the cause of the Accident[16], P could not tell, and did not know about, the cause of the Accident.

(2)  On affidavit evidence before me, D1, D2 and D2’s insurer had not responded to P’s solicitors’ pre-action letters all made in Oct 2014 to give any clue on the uncertainties above and below.

(3)  Neither did D2 respond to P’s discovery request by P’s solicitors’ letter in Oct 2014 for records of system and/or regulation adopted by, inter alia, D1 on maintenance inspection of the Lift, and records of regular checks of the Lift carried out by, inter alia, D1, covering the date of the Accident.

(4)  Looking at the writ issued in Oct 2014 and Statement of Claim filed in Aug 2015, P’s legal team, I think, apparently did not know about the correct internal arrangement of the Lift as between D1 and D2 (if any) and was laboring under the mistake that D1 was the contractor or agent of D2 in maintaining the Lift, for whose fault D2 was vicariously liable[17].

(5)  As manager of the Estate including Block 6, D2 arguably, I think, owed common duty of care under OLO to passengers of the Lift and residents of Block 6 using the Lift[18] and was arguably in breach of it in the Accident, especially against the background of the 5 Incidents that happened shortly before the Accident[19].

(6)  The case then presented by P’s Statement of Claim against both D1 and D2 was, one notes, based on the same factual circumstances of the Accident and the same particulars of negligence and breach of common duty of care against them.

62.  The 5 Incidents are, I agree with P, material evidence in her possession that can implicate D2. Though the 2^nd ground raised by Mr Lung on them[20] failed after trial, I do not consider it tenuous, speculative or far-fetched before trial.

63.  Moving on with time, I agree with D1 that D1 had not in its Defence filed in Sept 2015 put any blame on D2. Such blame on the successful defendant by the unsuccessful defendant has been described as “weighty” and observed to be “significant” in the making of Sanderson or Bullock order according to the Court of Appeal in Chong Ngan Seng, supra. But its absence is, I observe, no bar to their making if otherwise appropriate according to Bharwaney J. in Fung Chun Man, supra.

64.  Thereafter, by list of documents filed by D1 in Sept 2015, list of documents filed by D2 in Feb 2016 and witness statement of Wong filed by D1 in May 2016, I also agree with D1 that P came to know more of the Accident and the maintenance of the Lift, including the contactor problem of its KVAB Relay on the day of the Accident, by way of pertinent documents disclosed by D1 like the Logbook[21] and the Test Report[22].

65.  However, I disagree with D1’s submissions that P should discontinue her claim against D2 at this stage or, indeed, before trial. For such uncertainty, reasons and further development below, I think it reasonable for P to continue pursuing D2 to trial.

(1)  Uncertainty, I think, persisted until trial as to the underlying cause leading to the contactor problem of the KVAB Relay of the Lift on the day of the Accident[23] (Wong did not explain so in his witness statement).

(2)  Uncertainty, I think, persisted until trial as to the actualmanner of maintenance of the KVAB Relay of the Lift, if at all, shortly before the Accident[24] (Wong did not elaborate on that in his witness statement).

(3)  It was, I think, very difficult to tell or predict before trial what could be revealed upon cross-examination of Wong and of CP Wong (whose witness statement was made in Apr 2016) at trial. It could well be the case that cross-examination of Wong at trial could advance P’s case against D2.

(4)  D1 persisted to deny its lability to P. With no expert evidence at her disposal, P cannot, I think, be assured of proving her case against D1 at trial even after cross-examining Wong. There was, I think, a real risk before trial that D1 may escape from liability[25].

(5)  While this court absolved D2 from liability after trial, P had, I think, an arguable case before trial to go after D2 for reasons stated above. P’s case against D2 was not, I think, doomed to fail as D1 now submits with the benefit of hindsight.

66.  Thereafter, circumstances developed (or actions were taken by D2 and D1 later) in P’s favour below such that there was, I think, further reason to keep D2 to these proceedings until trial should D1 persist to deny liability.

(1)  In Apr 2017, D2 changed its solicitors and D2’s new solicitors took out the Contribution Proceedings against D1.

(2)  In May 2017, the supplemental witness statement of CP Wong was filed by D2. CP Wong pointed at para 8 thereof D1 was under obligation to inspect and maintain, specifically, KVAB Relay of the Lift under the provisions of the 2011 Contract[26].

(3)  In June 2017, in its Defence filed in the Contribution Proceedings, D1 made admissions about KVAB Relay of the Lift and repeated P’s particulars of negligence made against D2 in P’s Statement of Claim in the main action[27].

(4)  In July 2017, in answer to the Interrogatories served by D2, D1 filed the Affidavit made by its field manager, who made valuable admissions about KVAB Relay[28] and also disclosed for the first time the Report (with D1 recognizing problems with KVAB Relay with the lifts of the Estate and suggesting their renewal before the Accident[29]), thus allowing Mr Lung to run the 1^st Ground against D2 at trial[30] and allowing P more evidence to go after D1 at trial.

(5)  In Mar 2018, D1 repeated its admissions made about KVAB Relay in the pleadings of the Contribution Proceedings in its Amended Defence filed in the main action[31].

67.  Against the above background of new development, there was, I think, every reason for P’s legal team to believe before trial that there could be some in-fighting between D1 and D2 at trial to P’s advantage one way or another. CP Wong could, for example, give evidence under cross-examination or otherwise in P’s favour at trial against D1.

68.  Hence, P has satisfied me in all the circumstances of this action that it was reasonable for her to join D2 to these proceedings and to continue pursuing D2 to trial.

69.  All circumstances considered and to avoid any unnecessary taxations and/or risk of P’s award being used to pay costs, I exercise my discretion to make a Sanderson order to direct D1 to pays D2’s costs of the main action to D2 directly.

Submissions on Issus 3

70.  D2 submitted that D2 is effectively the winner of the Contribution Proceedings, as this court dismissed P’s claim against D2 and upheld P’s claim against D1. Costs should, argued D2, follow the event.

71.  By finding that P succeeded against D1, this court, submitted D2, effectively also found that D2 was successful in showing its ground of contribution against D1. It is thus neither fair nor just to deprive D2 its costs of the Contribution Proceedings.

72.  D2 also submitted that D1 had failed to beat D2’s numerous reasonable offers made both before and after commencement of the Contribution Proceedings. But for, D2 argued, D1’s unreasonable refusal to accept D2’s reasonable offers, the parties would not have embarked on a full trial.

73.  D1 submitted that it is quite clear that P could not claim against D2 and thus D2 should not, or needed not, have initiated the Contribution Proceedings against D1. D1 stressed that D2 has the Logbook in its possession and that D2 should have known that P could not have sued it successfully.

74.  The settlement offers made by D2 to D1, argued D1, are quite irrelevant.

Discussions on Issue 3

75.  I agree with D2 that D2 emerged after the Judgment as the winner of the Contribution Proceedings and that costs of the Contribution Proceedings should follow this event.

76.  In the Judgment, I find in D2’s favour that it was not in breach of its common duty of care towards P under OLO on the 1^st and 2^nd Grounds[32] for the Accident and that makes D2, I think, the winner: see also Lau Yau Tai, supra, para 50 & 51.

77.  Moreover, as I find D1 liable in negligence to P in the Judgment[33] for the same damage she sustained in the Accident that P also pursued D2 for breach of common duty of care under OLO, I also agree that D2 had established its right to seek contribution from D1 under the Civil Liability (Contribution) Ordinance, Cap.377.

78.  In other words, had D2 been held liable in the main action for the same damage sustained by P (or but for D2’s successful defence in the main action), this court would have ordered D1 to make contribution to D2 in the Contribution Proceedings.

79.  I disagree with D1 that it was unnecessary for D2 to take out the Contribution Proceedings against D1 as it did.

80.  I repeat herein my analysis of the state of parties’ pleadings and evidence, including witness statements and documents, and their uncertainty before trial in my discussions of Issue 2 above. P had, I think, an arguable case to sue, and go after, D2 and its end result was so uncertain before trial that it was, I think, reasonable for D2 to issue the Contribution Proceedings against D1. Such submissions to the contrary by Mr Poon now instructed for D1 were, I think, made with the benefit of hindsight of the Judgment.

81.  Hence, for similar reasons given at para 20-24 of Lau Chu Wing v Law Wai Shing & Others, unreported, DCPI 1389/2007, 11 June 2008, I find it neither just nor fair to deprive D2 its costs of the Contribution Proceedings as contended for by D1, which borne, on the Judgment, the ultimate responsibility in causing the Accident, this action and, I think, the Contribution Proceedings by its fault.

82.  Though it is not strictly necessary for my decision on this issue, I also deal briefly below with D2’s submissions on its settlement offers to D1.

83.  I disagree with D1’s submissions that these offers from D2 are irrelevant. They are, I think, relevant to the issue of costs and are admissible as written offer of contribution under O.16 r.10[34] (and O.62 r.5(1)(a)) and/or written offers marked “without prejudice save as to costs” under O.62 r.5(1)(d), as O.22 does not apply as between co-defendants and D2 could not have protected its position as to costs by means of sanctioned offer: see Hong Kong Civil Procedure 2020, Vol.1, para 16/10/1 & 22/1/23.

84.  I therefore agree with D2 to take these offers into my consideration on this issue. They are found in “without prejudice” correspondences passing between D2’s former and current solicitors and D1’s solicitors exhibited as “FKLK-01”[35] and “PWHY-2”[36]. I adopt summary of them helpfully prepared by Mr Lai instructed for D2 at para 7 & 8 of his written submissions.

85.  Prior to issue of the Contribution Proceedings in Apr 2017, D2 started offering to bear 10% liability in May 2016 and it was increased to as much as 50% liability in Mar 2017. D2 once offered to D1 in Oct 2016 to make joint sanctioned payment of $224,000 to P with D2 bearing 30%.

86.  After the issue of the Contribution Proceedings, D2 had increased its offer to D1 to agree to bear as high as 75% liability by July 2017. In Oct 2017 and Apr 2018, D2 further offered to D1 to make joint sanctioned payments of the respective sums of $160,000 and $180,000 to P with D2 bearing 75%.

87.  In the Judgment, I find D2 not liable to P at all after trial. By the 2^nd Offer made in May 2018, P was prepared to accept as little as $160,000 (inclusive of interest) plus costs from D1 and D2 in settlement of her whole claim as evidenced from the draft consent order annexed to the 2^nd Letter.

88.  I cannot but agree with D2 that its offers to D1 above are more than reasonable. D1 had, I think, unreasonably declined to accept them. In so far D1 was concerned with D2’s costs of main action and of the Contribution Proceedings, it could, as D2 then reasonably suggested and I agree, be left to be determined by court. Had D1 adopted a reasonable attitude to these reasonable offers from D2, I consider it most likely that the Contribution Proceedings and this disproportionately costly 3-day trial could both have been avoided.

89.  For this reason of settlement offers from D2, I would also have found against D1 on this issue and ordered D1 to pay D2 the costs of the Contribution Proceedings.

Dispositions

90.  Therefore, on top of those at para 192 & 193 of the Judgment, I make further orders in the main action as follows: -

(1)  D1 shall pay P further interest on the total damages of $206,610 awarded to P in the Judgment at 6% above judgment rate from 21 Apr 2018 until the Judgment;

(2)  D1 shall pay P’s costs of main action (inclusive of all reserved costs and the cost of the trial, together with certificate for one counsel) to P on party-to-party basis up to 20 Apr 2018 and on indemnity basis as from 21 Apr 2018, to be taxed if not agreed;

(3)  D1 shall pay P interest on P’s costs of main action as from 21 Apr 2018 at 5% p.a. from 21 Apr 2018 until this 2^nd judgment on costs;

(4)  D1 shall pay D2’s costs of main action (inclusive of all reserved costs and the cost of the trial, together with certificate for counsel) to D2, to be taxed if not agreed; and

(5)  P shall draft, file and serve all these orders made in the main action on D1 and D2.

91.  And I further make orders in the Contribution Proceedings as follows: -

(1)  D1 shall pay D2’s costs of the Contribution Proceedings (inclusive of all reserved costs and the cost of the trial, together with certificate for counsel) to D2, to be taxed if not agreed;

(2)  Save for costs order in (1) above, there be no order in the Contribution Proceedings; and

(3)  D2 shall draft, file and serve all these orders made in the Contribution Proceedings on D1.

Costs orders nisi in favour of P & D2

92.  I make an order nisi that costs of and incidental to P’s submissions on matters covered by this 2^nd judgment on costs be paid by D1 to P as part of P’s costs of the main action ordered above.

93.  I make another order nisi that costs of and incidental to D2’s submissions on matters covered by this 2^nd judgment on costs be paid by D1 to D2 as part of D2’s costs of the main action and of the Contribution Proceedings ordered above.

94.  It remains for me to thank all counsels for their written submissions.

(LEE Siu-ho) Deputy District Judge

Written Submissions by Mr Leon Ho (instructed by Messrs. K. H. Teh & Co.) for the Plaintiff

Written Submissions by Mr Jackson Poon (instructed by Messrs. Huen & Partners) for the 1^stDefendant

Written Submissions by Mr Alex Y.H. Lai (instructed by Messrs. Li & Partners) for the 2^nd Defendant

DCPI2370/2014

[2019] HKDC 1495

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO.2370 OF 2014

____________

BETWEEN
	YAU PO SHAN	Plaintiff
and
	THE EXPRESS LIFT COMPANY LIMITED	1st Defendant
	SYNERGIS MANAGEMENT SERVICES LIMITED	2nd Defendant

____________

Before: Deputy District Judge S.H. Lee in Court

Dates of Hearing : 25, 26 & 27 February 2019

Date of Judgment : 8 November 2019

____________________

JUDGMENT

____________________

1.  The plaintiff (Ms Yau) began this action in Oct 2014 against the 1^st defendant lift contractor (D1) and the 2^nd defendant building manager (D2) to recover damages for personal injuries she sustained in a lift accident on 1 Nov 2011.

2.  Ms Yau gave evidence that, upon reaching 2/F, the subject lift she was travelling (the Lift) suddenly plunged and jerked twice before it stopped and stalled violently at approximately 1-2 feet below the lobby floor (theAccident). She called no other witnesses.

3.  D1 called no witness at all. Not a single D1’s engineer or technician who examined or repaired the Lift is called.

4.  D2 called only its former assistant property manager Mr Wong Chun Pong (CP Wong) to give evidence. He managed the Estate from 2010 to about Jun/July 2011 and thus no D2’s staff on duty shortly before, or on the day of, the Accident is called.

5.  No investigation report of the Accident by D1, D2 or the Electrical & Mechanical Services Department (EMSD) is produced either. Neither is expert on liability called.

6.  Issues were joined on liability as to whether or not:

(1) the doctrine of res ipsa loquitur (the Doctrine) applies against D1 to make it liable to Ms Yau (Issue 1); and

(2) D2 has failed in its duty to supervise D1’s works and becomes liable to Ms Yau (Issue 2).

7.  Mr Vincent Lung (Mr Lung)[1] appearing for Ms Yau contended yes to Issue 1 and submitted that an inference of negligence can, and should, be drawn against D1.

8.  Mr Brian Lo (Mr Lo) appearing for D1 answered Issue 1 in the negative, arguing that 2 pre-conditions of the Doctrine have not been satisfied and that, if the Doctrine applies at all, any prima facie case so raised had been neutralized by D1 having taken reasonable care in maintaining the Lift.

9.  On Issue 2, Mr Lung advanced 2 grounds to submit a positive answer: -

(1)  The first relates to D1’s proposal to renew, inter alia, the Lift, which was said not to have been followed up at all before the Accident (1^st Ground); and

(2)  The second relates to 5 previous trapping incidents of the Lift in Oct 2011, whose alleged “root cause” was said not to be have been identified and solved before the Accident (2^nd Ground).

10.  In reply, Mr Alex Lai (Mr Lai) appearing for D2 contended that Issue 2 should be answered in the negative, arguing that D2 could reasonably be entitled to rely on, he described, a “first-class” contractor like D1 and that D2 had done all that could reasonably be expected of it in terms of supervision.

11.  On quantum, Ms Yau claimed around $650,000 in total in her Revised Statement of Damages (RSOD). Both D1 and D2 assert that she was contributorily negligent (CN) in not holding the handrails of the Lift. Save with her claim for travel expenses, all remaining heads of her claim are not agreed.

12.  In the event D2 is held liable to Ms Yau and not otherwise, D2 seeks an indemnity or contribution from D1 (the Contribution Proceedings). D1 contests the Contribution Proceedings.

Background facts

13.  Much of the facts is not disputed, cannot be disputed or cannot be seriously disputed. I find them as follows.

The parties

14.  On 1 Nov 2011, Ms Yau, aged 29, was a resident at 11/F of Block 6 of Tsui Ning Garden (Block 6), Tuen Mun (the Estate). Since 11, she has resided in Block 6 of the Estate.

15.  On the same day, D1 was the lift contractor of the Estate appointed by its incorporated owners (the IO) and responsible for maintenance and repairs of all the lifts of the Estate. It has been the lift contractor of the Estate since at least 2004.

16.  On the same day, D2 was the building manager of the Estate appointed by the IO and entrusted with the management of the common parts of the Estate, including all its lifts. D2 had entered into a management service contract with the IO covering 1 Aug 2010 to 31 July 2012 (theManagement Contract).

The Lift

17.  At all material times, the Estate had a total of 18 lifts and 3 of them served Block 6. The Lift was lift no.16 serving odd number floors[2] of Block 6. It had a maximum load of 900kg and a speed of 2.0m/s[3]. Its size was about 1.5m x 1.5m[4]. It could accommodate 12 passengers[5]. It was manufactured by D1’s parent company.  According to Ms Yau, it has not been replaced for at least 18 years.

18.  By reason of the provisions of the Management Contract[6], the provisions of the Building Management Ordinance[7], and the evidence of CP Wong below, the Lift was, I think, common parts of the Estate under D2’s control and management at all material times.

D1’s report to the IO

19.  Before D2 became manager of the Estate in Aug 2010, on or about 8 Mar 2010, D1 had provided the IO with a report in Chinese regarding renewal works of the control system of the lifts of the Estate entitled “電梯控制系統更新工程(報告)” (the Report)[8].

20.  D1 had identified in section A of the Report (電梯現況及需要改善要點) the existing conditions (項目現況) of, inter alia, the control system (控制系統) of the lifts of the Estate as: “繼電器邏輯控制 *平樓誤差達40mm *特別故障跟查困難 (bold and underline supplied)”. The recommended improvement (建議改善要點) in this respect is “電腦微處理器控制 *運行平穩順暢 *平樓精確+3mm…”

21.  At section B (更新工程内容) of the Report, there was a diagrammatic presentation of the entire lift system by way of diagrams of a lift car, its cable and its associated equipment. D1 identified by way of rectangular boxes and arrows on it the divers equipment to be renewed (更新設備), one of the box being control cabinet (控制櫃), at the apex of the said entire lift system.

22.  D1 gave the works expenses (工程費用) at section C of the Report. After taking into account estimated subsidies from the authorities, the outlay of the IO was estimated to be $4,131,000 (or $229,500 per each lift).

The prevailing legislation

23.  At all material times, the legislation regarding lift safety was Lifts and Escalators (Safety) Ordinance, Cap. 327 (L&ESO). Under s.29A(1) thereof, no person other than authorized persons[9] shall carry out “lift works”[10].D1 was at all material times a “registered lift contractor” under L&ESO.

24.  The then frequency of a) periodic maintenance of lifts; b) periodic examination of lifts and c) periodic testing of safety equipment of lifts by authorized persons below (as the case may be) to be arranged by “owner”[11] of lifts prescribed by L&ESO was: -

1)  at monthly intervals by “registered lift contractor” (s.19)

2)  at yearly intervals by “registered lift engineer” (s.21); and

3)  at i) yearly intervals without any load in the lift during operation (s.23(1)(a)) or, in lieu of the said 12-month period, at ii) 5-yearly intervals with full rated load in the lift during operation (s.23(1)(b) & s.23(2)), by “registered lift engineer”.

25.  The then monthly periodic maintenance prescribed by s.19 of L&ESO required “the lift… all machinery and equipment connected therewith and the safety equipment provided therefor to be inspected, cleaned, oiled and adjusted”.

26.  The then yearly periodic examination prescribed by s.21 of L&ESO required “the lift to be thoroughly examined … in order to determine whether the lift and all machinery and equipment connected therewith is in safe working order and… shall include, where applicable, an examination of the… control equipment of the lift… and of the safety equipment provided for the lift (italics supplied)”.

27.  Under clause 2.2 of then Code of Practice for Lift Works and Escalator Works[12] issued by EMSD (COP)[13], registered lift contractors had the responsibility to ensure that the lift works were carried out in a safe manner in order to protect the safety and health of the general public (italics supplied).

28.  Under then clause 4.1 of the COP, maintenance included the inspecting, cleaning, oiling and adjusting of a lift in order to keep the equipment and their accessories in good working order and prevent faults from occurring. Even though s.19 of L&ESO required periodic maintenance to be carried out at monthly interval, maintenance service was recommended to be carried out on lifts at least once every 2 weeks. Repair works covered the fault attending and fault finding activities as well as the action and work to restore the equipment or accessories to good working condition (italics and bold supplied).

D1’s lift contracts with the IO

29.  These then statutory frequencies of a) periodic maintenance of lifts; b) periodic examination of lifts and c) periodic testing of safety equipment of lifts were incorporated in lift maintenance contracts D1 had entered into with the IO, except for c), as was then recommended in the COP, the statutory frequency was increased from monthly interval to a contractual frequency of bi-weekly intervals.

The 2009 Contract

30.  D1 and the IO had a lift maintenance contract in Chinese covering 1 Sept 2009 to 31 Aug 2011 (the 2009 Contract). Under it, D1 shall: -

(1)  ensure that all works (including repair works) comply with the requirements of L&ESO (clause 4.3);

(2)  arrange periodic maintenance, examination and testing to comply with such standards prescribed by L&ESO (clause 4.6.1(a));

(3)  arrange periodic examination and testing at same intervals required by s.21 & s.23 of L&ESO (clause 4.6.3);

(4)  arrange periodic maintenance at bi-weekly intervals (clause 5.2) to restore the lifts to safe standard (clause 5.3);

(5)  comply with, inter alia, ss.21 & 23 of L&ESO in terms of periodic examination and testing (clause 5.5); and

(6)  provide maintenance record for inspection, including recording therein any repair works carried out by its staff (clauses 4.1(c) and 7.1).

The Extension Contract

31.  By a letter in Chinese signed by D1 in July 2011, the IO and D1 mutually agreed to extend the 2009 Contract on the same terms for 2 months up to 31 Oct 2011 (theExtension Contract).

The 2011 Contract

32.  As for lift maintenance service for the Estate as from 1 Nov 2011, D2, on behalf of the IO, prepared Chinese tender documents of the same and invited tenders to be submitted by 18 Aug 2011 (the Tender Documents). On 17 Aug 2011, D1 approved and signed on the Tender Documents and submitted its tender to the IO.

33.  At its annual general meeting held on 17 Sept 2011, the IO resolved to accept D1’s tender and awarded another 2-year contract to D1. On 18 Nov 2011, the IO and D1 executed a 2-year contract in Chinese for the lifts of the Estate effective as from 1 Nov 2011 (the 2011 Contract) i.e. effective as from the day of the Accident.

34.  The 2011 Contract expressly provides that such terms of the Tender Documents accepted by D1 shall be incorporated to become its terms and, hence, applicable on the day of the Accident.

35.  Clause 4.2 at section 3 (合約條款) of the Tender Documents provides that all works done by D1 shall be verified by D2 after service is rendered by D1.

36.  According to section 4 (合約特殊條款) of the Tender Documents, D1 shall: -

(1)  take over duties of maintaining the lifts of the Estate as from effective date of the contract and shall carry out regular maintenance of the said lifts in line with section 5 thereof (clause 4.1); and

(2)  arrange periodic maintenance, including examination, testing and adjustment etc. to the lifts and associated equipment at bi-weekly intervals in line with detailed requirements at section 5 thereof and provide detailed reports within 7 days of inspection. If D1 discover any damage or breakdown, it shall at once notify D2 and fill the same down in the maintenance records (clause 6.2).

37.  Section 5 (工作條款及細則) of the Tender Documents provides that D1 shall: -

(1)  provide qualified engineers and technicians in line with legal requirements and arrange maintenance, repair, testing and examination services to ensure that all lifts operate in safe, satisfactory and ideal conditions (clause 1.1);

(2)  shall inspect and repair in accordance with L&ESO and the latest COP issued thereunder (clause 1.5);

(3)  ensure that maintenance service includes inspection of control equipment (控制裝置) in order to ensure safe working of lifts and prevent faults from recurring (clause 2.1);

(4)  arrange periodic examination at monthly intervals pursuant to s.19 of L&ESO and at bi-weekly intervals according to applicable guidelines (clause 2.2);

(5)  arrange periodic examination at bi-weekly intervals to the following items at machinery room (機房), including “各類在控掣櫃內控制裝置及引線檢查、接點收緊及清潔，例如繼電器... (bold and underline supplied)” (clause 4.1.1 iii));

(6)  arrange periodic examination of such items of repair and maintenance works at clause 4.1 every 3 months, every 6 months, every 12 months and every 5 years and at such frequencies in line with L&ESO and latest requirements of applicable COP (clause 4.2.1, clause 4.3.1, clause 4.4.1, clause 4.5.1 and clause 4.6);

(7)  arrange periodic testing at same intervals in line with s.23 of L&ESO (clause 5.1); and

(8)  be responsible to record every on-site inspection and works carried out on maintenance records (clause 9).

38.  Annexed to the Tender Documents is one Table 1 giving information of, inter alia, the Lift. Its last annual, and its last 5-yearly, testing was recorded to have been carried out on 11 Mar 2011 and Mar 2011 respectively.

The last 5-yearly, and last annual, test of the Lift by D1

39.  There is produced one 2-page safety test and examination report in Chinese of this last 5-yearly, and last annual, examination and testing of the Lift (the Test Report).It was carried out, pursuant to s23 of L&ESO and the provisions of the 2009 Contract, by D1’s registered lift engineer on 11 Mar 2011 with the Lift fully loaded during operation.

40.  I give full weight to the contents of the Test Report. Save for one item[14], all other marked items thereof were favorably marked with “Pass”, “Yes”, “No” and “Good” (as the case may be). 6 items were identified requiring immediate follow-up[15] and all have been carried out by 23 Mar 2011. Not a single item required letter to be issued to the owner for follow-up[16]. The overall test status of the Lift was marked “Pass”.

The maintenance records kept by D2

41.  The next material documentary evidence produced regarding the conditions of, incidents happening to and works done to, the Lift shortly before and on the day of the Accident is 2-page extract (pp.45 & 46) of one 9-column[17] maintenance records (工作日誌) in Chinese of the Lift, lift No.17 and lift No.18 for the period from 8 Oct to 27 Dec 2011 (the Logbook) kept by D2, and filled in by D1’s staff, pursuant to the provisions of the Extension Contract and of the 2011 Contract.

42.  According to CP Wong’s evidence I accept, whenever D1’s staff attended the Estate to inspect, examine, maintain and/or repair, inter alia, the Lift (be it routine or ad hoc), they would first report to D2 and, after completing their works, fill in the information required by, and sign on, the Logbook. They would afterwards report again to D2’s staff, who would sign on the Logbook to confirm/verify the same.

43.  For all entries from the 1^st entry at the top of p.45 to 2^nd entry from top at p.46 of the Logbook i.e. the subject one for the Accident, their column (8) were all signed by one Catherine Lee, who was CP Wong’s former colleague at management office of the Estate. She was not called as witness either.

The last bi-weekly examination of the Lift by D1

44.  According to the Logbook, the last bi-weekly examination of the Lift was, I accept, carried out by D1 on 18 Oct 2011. That was recorded as the 10^th entry from top of p.45 of the Logbook. This “regular maintenance” (例行保養) of the Lift, lift No.17 and lift No.18 was, I accept, carried out by one 周福來 (Chow) of D1[18] from 1505 to 1830 hours on 18 Oct 2011, exactly 2 weeks before the day of the Accident. Chow was not called as witness either.

45.  I do not accept there was another “regular maintenance” (例行保養) of the Lift on 21 Oct 2011 as claimed by CP Wong. Though the “routine” box was ticked in column (2) of this only entry dated 21 Oct 2011 in the Logbook, instead of the 4 Chinese words of 例行保養 one may expect to find if it was regular maintenance, one finds in column (6) the Chinese words of “投訴行機震（檢查）”. Again, the engineer or technician concerned was not called.

The 5 previous trapping incidents of the Lift in Oct 2011

46.  Looking at p.45 of the Logbook, between 8 Oct 2011 and 31 Oct 2011, there were, I find, 5 instances, and 5 entries, of passengers being trapped inside the Lift that required firemen to arrive to release them. Their dates are 16, 17, 22, 28 and 29 Oct 2011[19] with the 5 related boxes of “trapping” all ticked in columns (2)and words like “去到消防放人” put down in columns (5) (the 5 Incidents).

47.  On each of the 5 Incidents, D1 had, as recorded in the Logbook, sent its staff to attend to the Lift and service of the Lift was later resumed. None of the staff so sent by D1 were called as witness. Among those sent for the trapping incident on 17 Oct 2011, one was called 黃偉文 (Wong)[20].

48.  As we shall see below, on 1 Nov 2011, Wong arrived at the Estate after the Accident and attended to the Lift. D1 had filed a witness statement of 黃偉文 in Mar 2016 (Wong’s W/S). But, by the time of trial, Wong has left D1 and he is no longer willing to testify. All counsels before me agreed, and I accept, that the contents of Wong’s W/S are thus inadmissible as evidence.

The last repair of the Lift by D1 before the Accident

49.  The last entry of the Lift before that for the Accident was on 31 Oct 2011[21]. The box of “trapping” was ticked and 0800 odd hours was put down in column (4)of “passenger released”. But no words like “去到消防放人” were found in column (5). Instead, it was put down that something was replaced (更換). I find it likely to be another trapping incident not involving firemen and that repairs were made to the Lift by Chow[22] before it resumed service at 1130 hours.

The Accident

50.  The Accident happened at around 0755 hours on 1 Nov 2011. It was Tuesday and Ms Yau took the Lift to go down the lobby to go to work at that time. At that time, there were altogether 7 passengers, including Ms Yau, inside the Lift. Such total number of trapped/rescued passengers was verified by an Incident Report of D2 compiled by Mr Albany Ng (Ng), D2’s building supervisor, at 0849 hours on the day of the Accident (the Incident Report) and another Incident Report dated 19 Nov 2014 (the FS Report) compiled by the Fire Services Department (FSD).

Ms Yau could not hold handrails

51.  Ms Yau agreed with Mr Lo, and I find, that handrails were installed with the Lift on the day of the Accident. Notwithstanding Mr Lo’s cross-examination, I accept Ms Yau’s unshaken evidence that she could not reasonably grab, and thus had not grabbed, hold of the handrails before and at the time of the Accident because of other passengers inside the Lift.

52.  When Ms Yau entered the Lift, there were, she said, several other passengers already inside it. Some of them were holding handbags and bags for work, and some were school children carrying heavy backpacks. They all stood near the handrails and thus obstructed her from holding onto them. She was thus forced to stand in the center of the Lift unable to grab hold of its handrails for support during her journey. She had attempted to reach out for the handrails during the Accident but was unable to do so for the same reason.

53.  Considering the date, and the hours, of the Accident, I find Ms Yau’s explanation inherently likely. Moreover, her evidence on this point was supported by entries to the said effect in the Incident Report. I therefore accept her evidence on this point.

54.  The claim of CN therefore fails.

Circumstances of the Accident

55.  Mr Lai challenged Ms Yau’s account of the Accident. First of all, I do not believe, as he put to Ms Yau, that she had “misunderstood” the Lift to have plunged downwards in the Accident more quickly than it normally descended.

56.  I say so because, according to the Incident Report, security guard on duty at Block 6 reported a “bang” sound being heard upon the Lift reaching the ground. And Ng saw the Lift stopped at about 1 foot below ground level when firemen opened its door. These entries support, I think, Ms Yau’s evidence of the Lift having plunged downwards at a speed greater than its normal speed (and of the Lift having landed below the lobby or ground floor) as she said.

57.  Secondly, I do note that Dr Julian W. Chang (Dr Chang) recorded in his medical notes of his consultation with Ms Yau in Mar 2012 that the Lift “dropped from 1^st floor -> ground floor (italics supplied)” and that Dr Lee Po Chin (Dr Lee) and Dr Chiang Si Chung Arthur (Dr Chiang and collectively the 2 Experts) in their joint expert report dated 18 Jan 2017 (the Joint Report) related a history of the Lift having “dropped from First floor to Ground floor (italics supplied)” “according to Ms Yau”.

58.  Nonetheless, Ms Yau maintained under cross-examination of the above medical records that the Accident happened when the Lift reached 2/F and I accept her evidence in this respect.

(1)  Ms Yau had, I think, convincingly explained in the box that she had looked at the indicator of the Lift to find out which floor it had reached when the Accident happened and had observed, inter alia, “2/F” on it. That occurs to me a likely reaction of anyone encountering the Accident.

(2)  Turning to the records of the 3 doctors, considering their roles as treating doctor and court experts on quantum, I find it unlikely they would have focused on liability as far as the exact floor the Accident began. Of interest, none of them recorded the Lift having landed below ground floor or level. And they could, I think, easily have recorded “2/F” uttered orally by Ms Yau in punti into “1/F” in English when they wrote their medical notes and report in English.

(3)  In any event, such discrepancy of one floor (as opposed to many floors) is, I agree with Mr Lung, relatively minor that it does not materially affect Ms Yau’s credibility or reliability.

59.  Overall, I accept Ms Yau’s evidence of the course of the Accident, including that it happened at 2/F as she said.

Ms Yau rescued by firemen

60.  As recorded by Incident Report and the FS Report[23], security guard on duty at the lobby of Block 6 reported the Accident to control room. The Accident was at once reported to D1 and to FSD. FSD vehicle soon arrived.

61.  At about 0814 hours, firemen opened the door of the Lift. They later restored it to ground level and released, inter alia, Ms Yau from it. Ms Yau reported discomfort and ambulance was called. She was later taken by ambulance to Accident & Emergency Department (A&E Dept) of Tuen Mun Hospital (TMH).

Follow-up action by D1

62.  In the meantime, Wong arrived at the Estate at about 0824 hours. At about 0840 hours, the Lift was shut down for inspection and repair by him and another. That was recorded down in the Incident Report and at p.46 of the Logbook.

The entry of the Accident

63.  The relevant entry of the Accident was the very 1^st entry at the top of p.46 of the Logbook (the Accident Entry). D1’s staff was recorded to have arrived at 0823 hours in column (1). The box of “trapping” in column (2) was ticked. Importantly, the “cause of fault or work done &/or parts replaced” in column (5) was recorded as: “(去到消防放人) KVAB拍不好 (更換) (bold and underline supplied)”. According to column (6), service of the Lift was resumed at 1446 hours. At column (7), the chop of, inter alia, Wong was put down.

64.  For D1’s admissions on pleadings and on interrogatories served by D2 referred below, I give full weight to the contents of the Accident Entry.

Another regular maintenance of the Lift by D1

65.  In line with bi-weekly intervals required by the 2011 Contract, another “regular examination” of the Lift, lift No.17 and lift No.18 was, I find, also carried out by Chow on 1 Nov 2011 from 0830 to 1830 hours as recorded by the 2^nd entry from the top at p.46 of the Logbook.

Cause of the Accident: contactor problem of KVAB Relay

66.  On all evidence adduced, including the contents of the Accident Entry and the admissions of D1 below, I find it likely that the Accident was caused by a failure of the KVAB Relay (繼電器), a relay for drive motion signaling, of the Lift.

67.  The KVAB Relay (繼電器) was, I find, a control equipment of the control system (控制系統) of the Lift, situated inside control cabinet (控制櫃)of the machinery room (機房) as indicated in the Report and the Tender Documents. It had some contactor (接觸點) problem leading to the Accident, and it was thus replaced by Wong, after, and on the day of, the Accident.

68.  D1 had made admissions below (which I give full weight) to the above effect.

(1)  D2 had served interrogatories on D1[24] (the Interrogatories) regarding, inter alia, allegation at para 11 of Wong’s W/S that, after the Accident, “D1 found the KVAB 計(繼)電器 was malfunction and the connection point of the said device needed to be replaced”[25] and demanding D1 to state, inter alia, (a) the function of the said KVAB 計(繼)電器. D1’s field manager[26] had made an affidavit in answer[27] (the Affidavit) to admit at para 5: “the function of the said KVAB relay (繼電器) is a relay for drive motion signaling”.

(2)  In reply to plaintiff’s plea at para 3A of Amended Statement of Claim[28], D1 admitted at para 7A of its Amended Defence[29], that, on the day of the Accident, its staff “Wong Wai Man (黃偉文) inspected the Lift and discovered that the cause for the breakdown of the Lift was the contactor of the KVAB Relay (KVAB繼電器的接觸點) in need of replacement”.

(3)  In reply to para 10 of D2’s statement of claim[30] in the Contribution Proceedings[31], D1 admitted at para 9 of its Defence in the Contribution Proceedings[32] that “the Lift had a breakdown on 1 Nov 2011 and D1’s technician, Mr Wong, subsequently checked the Lift and found that the contactor of the KVAB relay (KVAB繼電器接觸點) needs replacement”.

69.  As against D2, I arrive at the same cause of the Accident above despite Mr Lai’s observation and submissions that the English word of “Relay” and the Chinese words of “繼電器” were absent in the Accident Entry. In the absence of any other contrary evidence pointing to the English word of “KVAB” in the Accident Entry referring to any other distinct component of the Lift that caused the Accident, I think one can safely read, and should read, the said entry together with the relevant contents of the Affidavit, the Report, the Tender Documents and the two witness statements of CP Wong[33] to infer, and arrive equally at, some contactor (接觸點) problem of the KVAB Relay (繼電器) of the Lift as the cause of the Accident.

Application of subsidy from the authorities

70.  One month odd after the Accident, on 16 Dec 2011, the management committee of the IO held its 15^th meeting. A minute of this meeting was produced (the Minute).

71.  As recorded at para 7.2 of the Minute and I so find, D2 reported in the said meeting to the IO that documents had been submitted (已呈交) to EMSD to apply for government subsidy to replace all lifts of the Estate and EMSD had replied that the said application would be processed and/or approved by about mid-Jan 2012.

Discussion

Issue 1: Plaintiff’s case against D1

72.  It is not disputed by Mr Lo, and I find, that D1 at all material times owed a duty of care at common law to Ms Yau as passenger of the Lift to inspect the Lift, including its KVAB Relay (繼電器), properly and to keep it properly maintained to protect her health and safety.

73.  I find the said duty to include KVAB Relay (繼電器) despite it was notspecifically mentioned in the 2009 Contract or in the Extension Contract. The said component had, I observe, already found its way into the Report made by D1 as early as in Mar 2010 and into the Tender Documents signed by D1 as early in August 2011.

74.  Mr Lung submitted that D1 was negligent in failing to have inspected the Lift, including its KVAB Relay (繼電器), and/or kept it properly maintained, in time or at all. An inference of negligence should, he argued, be drawn on the Doctrine, despite the precise cause of the contactor problem of the said component is unknown.

The Doctrine

75.  The Doctrine is a mode of inferential reasoning. It comes into play where an accident of unknown cause is one that would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the plaintiff.  In such a situation the court is able to infer negligence on the defendant’s part unless he offers an acceptable explanation consistent with his having taken reasonable care: Sanfield Building Contractors Ltd v Li Kai Cheong (2003) 6 HKCFAR 207, 211D-F, per Bokhary PJ.

76.  It is a rule of evidence and it states no principle of law. It is only a convenient label to apply to a set of circumstances in which a claimant proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. He merely proves a result, not any particular act or omission producing the result: Clerk & Lindsell on Torts, 21^st Edition, para 8-184 at p.583.

77.  The burden of proving negligence rests throughout the case on a plaintiff. The effect of the Doctrine is only that faced with a prima facie case of negligence, the defendant would be found negligent unless he produced evidence that was capable of rebutting the prima facie case: Ng Chun-pui v Lee Chuen-tat [1988] 2 HKLR 425, cited in 陳樹榮 對 領匯管理有限公司, unreported, DCPI 1883/2011, 1 June 2016, para 31. There is no onus on the defendant to disprove negligence: Sanfield, supra, 211G-I.

78.  The 3 conditions for the Doctrine to apply are: (1) the occurrence is such that it would not have happened without negligence; (2) the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control[34]; and (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to the Doctrine is inappropriate for the question of the defendant’s negligence must be determined on that evidence: Clerk & Lindsell, supra, para 8-184.

79.  The above principles of law are not controversial. Mr Lo took no issue about condition (2) and I am satisfied it was met.

Condition (3): accident of unknown cause

80.  Mr Lo submitted that condition (3) has not been met. D1 had already, he stressed, made known in its pleadings (and the Accident Entry showed) that the cause of the Accident lied in failure of the KVAB Relay of the Lift such that the Doctrine does not apply.

81.  Mr Lo sought support from 陳樹榮, supra,where the Doctrine was held inapplicable[35] as the subject lift accident was shown by evidence to have been caused by detached worn guide shoe (導靴) found fallen down to lift shaft after the accident.

82.  He also referred to Kong Lin Fat Johnny v IO of Chang Pao Ching Building & Anor, unreported, DCPI 1580/2010, 12 Sept 2014, where the Doctrine was also held inapplicable[36] when the subject lift accident was shown by evidence to have been caused by faulty car door switch that had been loosened by vibration during the lift car’s downward travel.

83.  Mr Lung in reply relied on the judgment of Bokhary PJ at 211D of Sanfield: “But it matters not that the immediate cause of an accident (e.g. brake failure or a burst tyre) is known. As long as the cause on which the issue of liability actually turns (e.g. why the brakes failed or the tyre burst) is unknown, the accident is regarded as one of unknown cause”.

84.  Mr Lo countered to submit that the above passage is only obiter as the issue before the Court of Final Appeal in Sanfield, supra, is one of latent defect.

85.  In any event, on the analysis of Bokhary PJ, submitted Mr Lo, the underlying cause of the Accident is known to be contactor problem of the KVAB Relay, which required replacement on the day of the Accident. It does not matter that expert evidence on liability is required to explain such problem and the plaintiff has elected not to adduce the same.

86.  I do not agree with Mr Lo.

87.  While the appellant in Sanfield, supra, did not argue on appeal against the application of the Doctrine, the Court of Final Appeal upheld the judgment of the trial judge based on the Doctrine when only the immediate cause is known at trial. On the trial judge’s findings, the scaffold[37] (which the victim had climbed) toppled. But there was no evidence as to what made the scaffold toppled[38]. The cause on which the liability issue actually turns thus remained unknown at trial.

88.  Even if the above passage of Bokhary PJ in Sanfield, supra, is obiter and not binding on me, I think it is highly persuasive and authoritative as it came from the highest court of the land and all other 4 members of the Court of Final Appeal agreed with the judgment of Bokhary PJ.

89.  I therefore decide to follow the judgment of Bokhary PJ in Sanfield, supra, and not to follow陳樹榮, supra, or Kong Johnny, supra. I note that Sanfield, supra, was not cited at all in 陳樹榮, supra, or in Kong Johnny, supra.

90.  Applying the principles of Sanfield, supra, I agree with Mr Lung that the cause on which the liability issue of this action actually turns i.e. why the KVAB Relay of the Lift failed (or why there was contactor problem of the said KVAB Relay) on the day of the Accident remains unknown on the evidence before me.

91.  The Accident remains, I think, an accident of unknown cause for the Doctrine to apply and I so rule.

Condition (1): the Accident would not have happened without negligence

92.  By reference to a long line of escalator authorities starting locally with Kam Wai Ming v MTR & Anor, unreported, DCPI 408/2002, 11 Dec 2003, that held that mere or unexpected stopping of escalators cannot give rise to an inference of negligence on the Doctrine as escalators are designed to stop in an emergency[39], Mr Lai first submitted that the Accident is not one such that it would not have happened without negligence on the part of D1.

93.  Mr Lo next submitted that it is inherently difficult to apply the Doctrine to complex moving machinery like the Lift, which is expected to have stopping mechanism to deal with a fall or breakdown. No case of lift contractor being liable on the Doctrine was, he stressed, produced before this court.

94.  The mere fall and stop of the Lift or the failure of its KVAB Relay, Mr Lo argued, are not evidence by themselves that there is an occurrence that would not have happened without negligence on the part of D1. There is no expert evidence to show that the manner of stopping of the Lift on the day of the Accident was not in line with its design. The Lift may, he argued, fail for its old age. Though its KVAB Relay was “replaced” afterwards, the Accident Entry, argued Mr Lo, nowhere recorded that it was “defective”.

95.  Mr Lai further argued that a defective component per se is insufficient to give rise to inference of fault of any party and he sought support from para 92 of the judgment of陳樹榮, supra, and para 141 of the judgment of Kong Johnny, supra.

96.  Starting with lifts in general, I agree with Mr Lo that they have material differences in terms of design and running from those of escalators. Escalators must be designed to so stop not to propel riders off the steps whereas, one imagines, there is no such risk for enclosed lift cars. Buttons are installed in escalators for riders to stop their running in emergencies like shoelace trapped between steps or article of clothing got entangled. Such risk of outside or external interference is, I think, unheard of in case of lifts. But I would assume Mr Lo was right to say that lifts, like escalators, should equally have mechanism to deal with a sudden stop or fall in an emergency.

97.  Hence, as between lifts authorities and escalators authorities cited before me, I think the former are generally more comparable and applicable to this case. The latter, if applicable at all, should be treated with caution.

98.  With the above observation and caveat, I move to consider the Lift and the Accident.

99.  In the Accident, the Lift certainly did not fall straight to the ground without stopping at all, or without engaging stopping mechanism, such that the Doctrine must apply as Mr Lo had conceded.

100.  But, equally, unlike mere stopping of escalators in escalators authorities put before me, the Accident, I think, went beyond mere fall and stop of the Lift. In the Accident, on reaching 2/F of Block 6, the Lift suddenly plunged at greater than its normal speed and jerked twice before it stopped and stalled violently at about 1 foot below the lobby floor (causing a “bang” sound) such that Ms Yau and others were trapped inside it. Firemen had to restore the Lift to ground level before releasing her out from the Lift.

101.  Considering the circumstances of the Accident as a whole, applying common sense, it does not look like to me normal functioning of the Lift at all, though it was an old lift. I do not think it likely that the Lift was designed to function like that.

102.  In the escalator case of Chan Ching Yuk v OTIS Elevator & Anor, unreported, DCPI 248/2005, 11 Sept 2007[40], had the escalator in that case suddenly stopped and then moved again or, alternatively, jerked, his Honour Judge Leung also considered that it was not mere sudden stoppage and not how the escalator was designed to function and believed that the plaintiff could rely on the Doctrine to infer negligence as it was an apparent abnormal functioning of the escalator ^[41].

103.  Turning to the KVAB Relay of the Lift, whose contactor problem led to the Accident, while the word “defective” was not found in the Accident Entry, one begs to ask why Wong did not adjust or repair it but saw fit to “replace” it, or why it had not been replaced at an earlier examination of the Lift by D1.

104.  It should be noted that the other circumstances established by evidence adduced include:

(1)  KVAB Relay was a control equipment of the control system of the Lift, situated inside control cabinet of the machinery room and, hence, unlikely to be subject to natural elements like rain, interference by foreign objects or users of the Lift;

(2)  D1 had recognized and discovered the conditions of KVAB Relays of the lifts of the Estate in general and suggested improvement be made to them in the Report as early as in Mar 2010;

(3)  Specific provision had been made in the Tender Documents signed by D1 as early as in Aug 2011 (and in the 2011 Contract) for D1 to arrange periodic examination of KVAB Relays (繼電器) of the lifts of the Estate every 14 days, every 3 months, every 6 months and every 12 months by way of its obligations of maintaining, inter alia, the Lift;

(4)  The total number of passengers inside the Lift at the time of the Accident did not exceed its maximum capacity of 12 persons;

(5)  Wong could discover, and had discovered, the contactor problem of the KVAB Relay of the Lift being its cause, and replaced the said KVAB Relay, within 7 hours on the same day of the Accident.

These proven circumstances combined went beyond, I think, mere failure of a component of the Lift.

105.  In so far Mr Lai relied on para 92 of the judgment of 陳樹榮, supra[42], those words were, I think, said by the deputy district judge in the context of analyzing the maintenance evidencegiven by 2^nd defendant lift contractor before him.

106.  At para 141 of the judgment of Kong Johnny, supra[43], the deputy district judge also, I note, said at the end of the same para: “the facts of each particular case must be closely scrutinized to see if it is a case of negligence, a case of accident without negligence of any persons or otherwise (italics supplied)”.

107.  Taking all circumstances established by evidence adduced before me, I agree with Mr Lung that the Accident was an occurrence that would not have happened without negligence on the part of D1 in terms of inspection, maintenance and repair of the Lift, including its KVAB Relay.

108.  Condition (1) is, I think, also met.

109.  Hence, the Doctrine applies in the circumstances of this case against D1. There is, I think, prima facie evidence of negligence that calls for a rebuttal from D1.

Prima facie case rebutted or not?

110.  Mr Lo submitted that any inference, if any, of negligence has been displaced by D1’s evidence of reasonable maintenance and repair of the Lift.

111.  He developed his submissions along the following lines:

(1)  He adopted Mr Lai’s submissions, or description, of D1 being a “first class” contractor on the evidence;

(2)  He stressed that, as shown by the Logbook, D1 had carried out since 18 Oct 2011 periodic examination, or regular maintenance, of the Lift at bi-weekly intervals in line with the Extension Contract and the 2011 Contract, more frequently than that required by L&ESO;

(3)  He added that D1’s staff had filled in the Logbook as required by its contracts with the IO;

(4)  Also shown by the Logbook and the evidence of CP Wong, D1, he said, had attended to the Estate to provide ad hoc inspection and repair to its lifts at D2’s request from time to time;

(5)  He emphasized there is no factual or expert evidence that these maintenance and repairs were not properly done[44]; and

(6)  He repeated that the plaintiff bears the burden of proof in this action.

112.  On evidence before me, including D1’s own introduction in the Tender Documents, I agree with Mr Lai that D1 was a competent contractor in a position to fulfill the obligations of its lift maintenance contracts with the IO. It had the necessary knowledge, resources, qualified personnel and experience to undertake them[45]. It does not matter one labelled it “first-class” contractor or not. But that, I think, does not answer the question whether it had at the material times properly inspected and maintained the Lift or not.

113.  It is also true, and not disputed, that D1 had complied with its contractual and statutory obligations to arrange required frequencies of testing, inspection and examination of the lifts of the Estate, including the Lift, and also arranged for ad hoc inspections and repairs from time to time as required. And records in form of the Test Report and the Logbook are put before me.

114.  But, importantly, save except for the Test Report, there is no evidence of the detailed works and manner of maintenance, inspection, examination, testing and repairs that were actually carried out by D1 on the Lift and its KVAB Relay at all material times before the Accident.

(1)  While the Test Report gives a long list of tested items of the Lift carried out by D1’s registered lift engineer, it does not specifically include KVAB Relay. In any event, this test was carried out as long as more than 7 months before the Accident.

(2)  The “regular maintenance” entries in the Logbook gives one no clue what inspection and maintenance works were actually carried by D1 on the Lift and how they were actually carried out, in particular, whether or not they included its KVAB Relay[46].

(3)  Save for the cause(s) of, and works required for, the breakdown of the lift on the day in question, such ad hoc entries in the Logbook does not assist D1 regarding the Accident involving the Lift on the day of the Accident.

(4)  The Accident Entry does not tell one either whether or not (and if so, how) the KVAB Relay of the Lift was actually inspected and maintained by D1 at the material times, how its contactor problem arose in the first place (and whether it related to D1’s fault or otherwise) and whether or not such problem could reasonably have been discovered and avoided by D1.

(5)  In answer to the Interrogatories on para 11 of Wong’s W/S as to: (b) whether D1 had carried out any examination to the said KVAB 計(繼)電器 before the Accident; and (c) if yes to (b), why the examination carried out did not reveal the malfunction of the said KVAB 計(繼)電器 at that time, D1 admitted at para 6 of the Affidavit to say: “D1 has no documentary record of specific examination on the KVAB relay (italics and underline supplied)”. 

115.  In contrast, in 陳樹榮, supra, documentary evidence was produced showing specific inspection of subject guide shoes at 7 bi-weekly examination in the 3 months before accident[47]. Technician who attended after subject accident were also called in陳樹榮, supra, and his evidence on maintenance of guide shoes, and cause of the accident, was accepted by the court[48].

116.  Instead, the plaintiff relied on the Doctrine and elected not to adduce positive evidence, factual or expert, to prove and/or pinpoint any specific fault of D1 in inspecting and/or maintaining the Lift. And the burden of proof never shifts to D1 even with the application of the Doctrine.

117.  After careful analysis of all evidence adduced before me, I cannot but conclude that the prima facie case of negligence so raised against D1 on the Doctrine was never rebutted.

118.  D1 had, I also conclude, failed to adduceevidence of its regular and proper inspection and maintenance of the Lift, including its KVAB Relay, at all material times before the Accident that is capable of rebutting the said prima facie case.

Answer to Issue 1

119.  Hence, I agree with Mr Lung that an inference of negligence can be, and should be, drawn against D1 for failing to have inspected the Lift, including its KVAB Relay (繼電器), and/or kept it maintained properly, in time or at all (and it does not matter precisely what the specific fault(s) of D1 was/were) and that, had D1 not so failed, its contactor problem would not have arisen and/or would have been identified and solved in good time and the Accident avoided.

120.  The plaintiff has thus proven her case against D1 and D1 is liable in negligence to Ms Yau.

Issue 2: Plaintiff’s case against D2

121.  On the facts above, I find that, at all material times, D2 was an occupier of the Lift under Occupiers Liability Ordinance, Cap.314 (OLO) and Ms Yau a lawful visitor to it under OLO.

122.  Hence, I agree with Mr Lung that D2 owed to Ms Yau the common duty of care to take such care as in all the circumstances of this case is reasonable to see that she would be reasonably safe in using the Lift: s.3(2) of OLO.

123.  Mr Lung took no issue with the selection and/or appointment of D1 as the lift contractor of the Estate in the first place[49]. Neither did he take issue with the provisions of D1’s maintenance contracts with the IO[50]. And maintenance records of the Lift had apparently been kept by D2 by way of the Logbook.

124.  Mr Lung focused his case against D2 on supervision and submitted that D2 was in breach of its duty for failing to have supervised D1 on the 1^st and/or 2^nd Grounds.

125.  In opposing plaintiff’s claim, Mr Lai relied on s.3(4)(b) of OLO[51]. According to UK court of appeal[52], the subsection is a statutory recognition of the correctness of the decision of Hazeldine v C.A. Daw & Son Ltd [1941] 2 KB 343, where a landlord’s obligation to take care to ensure that the lift he provided was reasonably safe was discharged by employing competent contractors.

1^st Ground: the Report

126.  Mr Lung emphasized that D1 had as early as in Mar 2010 recommended to improve or renew the control system of the lifts of the Estate and D1 had specifically identified in the Report problems with KVAB Relays. A reasonable building manager ought, he argued, to have taken up the recommendations in the Report with the IO before the Accident in Nov 2011, by which time a reasonable period of time should have expired for that to be done as it was by then 1 year and 8 months from the date of the Report.

127.  Though D2 could only become responsible for the said follow-up as from 1 Aug 2010 when it became manager of the Estate, there is, Mr Lung argued, no evidence that D2 had ever followed up on D1’s recommendations in the Report since it took over as building manager in Aug 2010.

128.  There was, Mr Lung stressed, no documentary evidence produced to show D2’s efforts, if any, to take up the recommendations of the Report with the IO before 1 Nov 2011 e.g. bringing them up as item of agenda for IO to vote at meetings. As to such minimal contrary evidence of CP Wong in his supplemental witness statement and in the box, he urged this court not to accept them.

129.  Moving to causation, though the problems of KVAB Relay identified in the Report may pose no immediate danger, had they been solved by having the recommendations in the Report implemented, Mr Lung argued, the Accident could likely have been avoided.

130.  One should, I think, first observe the followings about the contents of the Report:

(1)  D1 had never suggested in it that the lifts of the Estate were unsafe or dangerous to be used or that they should be replaced at once without delay[53].

(2)  The recommendations were put forward as renewal (更新) or improvement (改善) (the Lift has, after all, not been replaced for at least 18 years).

(3)  The total expenditure for all 18 lifts of the Estate plus employing contractor costs as much as $6.4M odd. With estimated government subsidy of $2.2M odd, the estimated outlay to be paid by the IO remained a no small sum of $4.1M odd.

131.  One year after the Report, the overall test status of the Lift, one further observes, was still marked “pass” in the Test Report. The items to be followed up did not include the recommendations in the Report. Hence, there seems to be no cause or urgency even by Mar 2011 to implement these recommendations at substantial costs. Even allowing for the happening of the 5 Incidents in Oct 2011, one wonders objectively whether reasonable time had expired by the Accident for D2 to follow them up with the IO.

132.  In any event, though more documentary evidence is not forthcoming and the Minute itself gave no specific date of IO’s having made its subsidy application to EMSD to replace all the lifts of the Estate, I believe in CP Wong who said at para 10 of his supplemental witness statement dated Apr 2017 that such application had been made by D2 on behalf of the IO before the Accident.

133.  CP Wong had answered Mr Lung in the box that, since the Report was made available, D2 had discussions with the IO throughout about the suggested improvements in the Report and had applied on its behalf for government subsidy for the same. I accept this evidence, noting that CP Wong has already left D2 by trial[54] and have no motive to distort his evidence. The record in the Minute is, I think, also consistent with such evidence.

134.  As such, D2 did follow up on the recommendations of the Reports with the IO before the Accident and Mr Lung’s submissions fail on the facts I find.

135.  Furthermore, D2 could at best, one thinks, follow up the recommendations and could notdictate their implementation and progress. It was up to the IO to decide whether or not (and, if so, how and when) to implement them and it was also up to the authorities to decide whether or not to grant subsidy for the IO (and, if so, to decide the amount). Hence, I am not satisfied with Mr Lung causation submissions either. There mere follow-up of these recommendations by D2 by no means could likely avoid the Accident as he submitted.

136.  This 1^st Ground fails.

2^nd Ground: the 5 Incidents

137.  By reference to the 5 Incidents in Oct 2011 shortly before the Accident, Mr Lung submitted by way of opening[55] that D2 should have taken reasonable steps by, for example, specifically requesting D1 to identify the cause(s) of repeated breakdowns of the Lift and look into the root of the problem.

138.  Mr Lung prayed in aid the judgment of Kong Johnny, supra, where the court concluded at para 203 that the two defendants[56] had not taken reasonable steps to maintain and repair the lift before accident by, such as, asking the lift contractor to identify the cause(s) of the repeated lift breakdowns and to solve the root of the problem and, had they done so, such as by paying heed to its car door switch, the accident could be avoided.

139.  Mr Lung further cited Dimitrelos v 14 Martin Place Pty Limited[2007] NSWCA 85, where it was said that such statement in Hazeldine, supra, that it is always sufficient for the occupier of a building to discharge its duty so far as providing proper lifts by choosing a first class firm of lift engineers to superintend the lifts may no longer be sufficient in 21^st century[57].

140.  In cross-examining CP Wong, Mr Lung put that it was extraordinary (不尋常) for the Lift to have as many as 5 trapping incidents in one single month of Oct 2011. CP Wong disagreed.

141.  CP Wong did, however agreed that a responsible manager, faced with 5 trapping incidents in one single month, would undertake a thorough examination of the lift concerned to identify the underlying reason.

142.  Mr Lung next pointed the facts that trapping incident twice occurred again the next day after incident (i.e. on 17 Oct after the incident on 16 Oct 2011 and on 29 Oct after the incident on 28 Oct 2011) and suggested that D1’s works on 16 and 28 Oct was not effective. CP Wong disagreed, saying that D2 had never received any report from D1 that the Lift should be shut down.

143.  Mr Lung continued to put that the circumstances of this case demand a responsible manager to seek a second opinion from another contractor. CP Wong disagreed, saying that it was rare to seek opinion from another contractor other than the appointed one and it was not for D2 to so decide.

144.  In closing, Mr Lung submitted that the 5 Incidents all had the same “root cause” of KVAB Relay but that had not been properly identified, and resolved, by D1’s staff during inspections and repairs each time after the 5 Incidents such that the Accident was not avoided on 1 Nov 2011.

145.  He further relied on the case of Poon Kwok Wing Ernest v Airport Authority [2010] 3 HKLRD 354, where the escalator had for unknown reasons stopped many times but neither the defendant authority nor its escalator contractor found out what caused the stoppages and they just sent someone to reactivate the escalator each time after repeated stoppages[58].

146.  The court of appeal, he stressed, said at para 32 of the judgment of Poon Ernest, supra, that had the defendant authority and its contractor “tried their best to find out what it was which caused the escalator to stop suddenly for no reason, they should have been able to ascertain the cause(s) and take remedial measures… If, after examination, they still could not ascertain what caused the unexplained stoppages, then caution might require that the escalator… be shut down and not be used until the cause(s) of the stoppages was/were ascertained and proper remedial measures were taken”.

147.  Absent D1 calling at trial its technicians or engineers sent to attend to the Lift on the days of the 5 Incidents, Mr Lung submitted that it is questionable that the alleged causes of fault put down in column (5) of the Logbook on these 5 entries were the “correct” ones (or the correct diagnosis) and that such works done/parts replaced carried out by D1 as recorded in the same column on these 5 dates were the “proper” remedial measures taken in response thereto.

148.  The 5 Incidents were, he skillfully argued relying on Poon Ernest, supra, all trapping incidents of the Lift with passengers trapped for unknown causes, occurring as many as 5 times within a short period of 1 month that reasonably called for D2 to specifically instruct D1 to identify the cause(s) of these repeated trapping and to look into the root of the problem.

149.  It is, I think, significant to note that Mr Lung does not rely on the Doctrine as against D2. As such, he has to prove by evidence the 2^nd Ground he made specifically against D2. In contrast, in Poon Ernest, supra, the court of appeal allowed the appeal by drawing an inference of negligence against the defendant authority[59].

150.  For reasons below, I differ from Mr Lung and decide to give full weight to D1’s entries at column (5) of the Logbook for the 5 Incidents, accept the causes of fault as recorded being the “correct” ones for the 5 Incidents and the works done/parts replaced as recorded being their “proper” response or remedy thereto.

(1)  While D1 had not called its technicians and engineers concerned, neither did Mr Lung call contrary expert evidence on liability to contradict these entries for the 5 Incidents or to prove that the 5 Incidents were all caused by common failure of KVAB Relay of the Lift.

(2)  In Kong Johnny, supra, there was produced joint expert report opining faulty car door switch as the common cause of the repeated breakdown by reference to remark in investigation report prepared by EMSD that the lift contractor had not been able to identify it as the problem that caused the lift breakdowns and hence had not been able to effectively solve the problem[60].

(3)  There was no suggestion that those inspections of, and works to, the Lift on the 5 Incidents were not carried out by qualified staff or that these entries were not made by the staff themselves.

(4)  On evidence before me, one cannot think of any motive for these staff to conceal or misrepresent matters in making these entries for the 5 Incidents in the Logbook.

(5)  These entries for the 5 Incidents in the Logbook were made contemporaneously by them shortly after their having spent differing periods of time on these 5 days to inspect the Lift, havingdiscovered its source of problem and having undertaken repair works to rectify such problem they discovered.

(6)  As qualified personnel and with the Lift shut down and time made available to them for inspection, they should be in a good position to discover its source of problem on the 5 Incidents (indeed, the plaintiff also accepts column (5) of the Accident Entry, accepts that Wong had been able to discover, and had properly discovered, the correct cause of the Accident being contactor problem of the KVAB Relay of the Lift and made the proper remedy of replacing the KVAB Relay. Wong, who also attended to the Lift on the incident on 17 Oct 2011, was also not called. Had KVAB Relay failure been the cause for the incident on 17 Oct 2011, Wong should also, one imagines, been able to discover it on 17 Oct as he did on 1 Nov 2011).

(7)  While Catherine Lee of D2 was not called (and CP Wong no longer managed the Estate in Oct 2011), one imagines it inherently unlikely that, after D1 staff had completed their works on the Lift after each of the 5 Incidents, she did not verify that it had apparently resumed its normal working before resuming its service (and the Lift did resume normal service thereafter for different periods of time before encountering breakdown or trapping again and such service resumption was consistent with a “proper” cure having been made).

(8)  While passengers were trapped in the Lift in the 5 Incidents, there was no evidence adduced that, as was the case in the Accident, the Lift suddenly plunged and jerked, or that it stopped and stalled violently below ground, in these 5 earlier incidents. There is no evidence that their other circumstances were alike or similar.

151.  Hence, I agree with Mr Lai that the 5 Incidents all had known causes different from that of KVAB Relay failure for the Accident, which feature materially distinguishes this case from the cases of Kong Johnny, supra, and Poon Ernest, supra. The Accident was, I find, an isolated incident on its own. There is thus, I think, nocommon root cause to be identified and solved so as to avoid the Accident as submitted by Mr Lung.

152.  In any event, Mr Lai’s submissions that lift maintenance is works of a highly technical nature that the law (i.e. L&ESO) allows only authorized or qualified persons to undertake remain, I think, of weighty force even in 21^st century.

153.  As was said by CP Wong (though he no longer managed the Estate in Oct 2011), the Lift was, I accept, only allowed by D2 after each breakdown (and, I think, after each of the 5 Incidents) to resume service after D1’s staff confirmed that it was safe to do so.

154.  With different causes identified by D1’s staff for each of the 5 Incidents and works done/parts replaced by them to deal with each of these causes as they confirmed by making, and signing on, the entries for the 5 Incidents in the Logbook, and with the Lift apparently resuming normal working order afterwards, I agree with CP Wong (and Mr Lai) that there was nothing at the material times that caused D2 to question such confirmation from D1.

155.  There is, one notes, no evidence of earlier history of the Lift (e.g. more extract of the Logbook earlier in time) adduced that proves that the 5 Incidents were relatively more frequent or serious than that or those in the past (the Lift, after all, has not been replaced for at least 18 years). Neither is there evidence adduced that injury or death was caused to anyone in any of the 5 Incidents.

156.  One must further bear in mind that the Accident happened on the very 1^st day of a new 2-year contract recently awarded to D1 by resolution of the IO at meeting held on 17 Sept 2011 (though the 2011 Contract was yet to be executed).

157.  Given that there was no complaint by Mr Lung about the selection and appointment of D1 by the IO, the suggestion he put to CP Wong that D2 should seek a second opinion from another contractor than that recently appointed by the IO because of the 5 Incidents in Oct 2011 sounds more to me an afterthought with the benefit of hindsight than a reasonable step that ought to have been taken by D2 in its circumstances and position at the material times.

158.  All things considered, at all material times, D2 was, I agree with Mr Lai, reasonably entitled to rely on the expertise and judgment of D1 and that D2 had done all that could reasonably be expected of it in terms of supervision.

159.  This 2^nd Ground also fails.

Answer to Issue 2

160.  D2 is thus not liable to the plaintiff under OLO for failing to supervise D1, be it on 1^st and/or 2^nd Grounds.

Contribution Proceedings

161.  Given my answer to Issue 2, I do not find it necessary to decide on the Contribution Proceedings.

Quantum

Injuries, treatments & sick leave

162.  According to medical report produced, whose contents I give full weight, on arrival at A&E Dept of TMH, Ms Yau complained of neck, low back and right ankle injury. Examination revealed tenderness over neck, low back and right ankle regions. Cervical spines X-ray showed no fracture. She was treated and discharged on the same day.

163.  On 5 Nov 2011, Ms Yau consulted Dr Tio Man Kwun Peter (Dr Tio). She thereafter attended Hong Kong Sport and Dance Injury Centre on 5 occasions for treatment between 8 and 16 Nov 2011. On 22 Nov 2011, she consulted Dr T. K. Tan (Dr Tan). Afterwards, she received chiropractic treatment from a chiropractic doctor[61] on 32 occasions from 22 Nov 2011 to 23 Apr 2012. On 20 Mar 2012, she consulted Dr Chang. These treatments sought by her are, I find, all proven by documents before me.

164.  Ms Yau was given intermittently a total of 38 days of sick leave from 1 Nov 2011 to 24 Apr 2012. Such length of sick leave is proven by certificates produced and opined reasonable or acceptable by the 2 Experts and I so find.

Diagnosis & causation

165.  Both the 2 Experts agreed in Joint Report, and I find, that Ms Yau suffered from soft tissues injuries at her neck, low back and right ankle as a result of the Accident. They both opined that such injuries are consistent with the mode or mechanism of injury she described.

166.  Both the 2 Experts further agreed in their joint supplemental medical report dated 3 July 2017, and I find, that such laxity of anterior talofibular ligament of her right ankle (and instability of her right ankle) found on their joint examination in Nov 2016 (the 2016 Examination) was unrelated or not caused by the Accident[62].

167.  Hence, Mr Lung sensibly opened his case by abandoning the claim for future medical expenses (i.e. reconstruction surgery of Ms Yau’s right ankle) advanced in RSOD.

Disability, prognosis & impairment

168.  Further, despite Ms Yau’s contrary evidence in the box, I agree with Dr Chiang’s opinion in the Joint Report that the severity of her complaints made in the 2016 Examination is likely due to post-Apr 2012 events or disease unrelated to the Accident and/or over-emphasis of symptoms on her part. Put another way, I agree and find that Ms Yau’s soft tissue injury to neck, back and right ankle had already achieved satisfactory recovery by about end of Apr 2012.

169.  My reasons are that: -

(1)  She suffered only soft issue injury in the Accident, with no fracture on X-ray nor neurological symptoms reported. It is, I think, inherently improbable that her symptoms arising therefrom remained unresolved and as severe as she claimed even by the 2016 Examination 5 years later.

(2)  The fact that she did not seek further medical treatment after Apr 2012 is, in my view, supportive of her having achieved satisfactory recovery of her injuries.

(3)  By her consultation with Dr Chang in Mar 2012, her main complaint was with right elbow and right flank and her neck and low back symptoms at that stage was, I agree with Dr Chiang and on the medical records of Dr Chang, only mild.

(4)  Most symptoms complained by her in the 2016 Examination were, according to Dr Chiang and I agree, not noted by Dr Chang when she consulted him in Mar 2012 more than 4 years ago.

(5)  The objective examination findings of neck and back in the 2016 Examination revealed, I agree with Dr Chiang, a likely satisfactory condition that did not support her then complaints.

170.  For the above reasons, I find it also likely that Ms Yau has reached the stage of maximal medical recovery by about end of Apr 2012. In any event, both the 2 Expert agreed that she has so achieved by the 2016 Examination. They opined in the Joint Report that further treatment apart from stretching and strengthening exercise of the neck and back is not necessary and that further deterioration of these symptoms of her to require surgery is not expected.

171.  And I think it likely, and I find, that Ms Yau has by trial only mild residual symptoms of pain, numbness and/or stiffness over her neck and spine that was caused by the Accident. Indeed, she agreed with Mr Lai in the box that further recovery has been achieved by her after the 2016 Examination.

172.  In terms of percentage of total impairment of the whole person, in line with my agreement with Dr Chiang’s opinions on divers points, I prefer his assessment of 1% to 2% to that of 4% made by Dr Lee[63]. The former reflects, I think, a more accurate assessment of Ms Yau’s current residual neck and back symptoms that was caused by the Accident.

173.  As to Ms Yau’s claimed inability to return to sports after the Accident and her evidence to that effect “for fear of aggravating her injuries”, I think it likely that she had only been temporarily handicapped to return to sports, if she enjoyed at all before the Accident, prior to end of April 2012 due to soft tissue injuries she received in the Accident (for which she soon mostly recovered) but that any subsequent incapacity, if any, was likely due to her ligament laxity of her right ankle unrelated to the Accident. The 2 Experts nowhere opined in the Joint Report that she could never return to sports after, and due to, her soft tissues injuries in the Accident.

174.  Despite Ms Yau’s claim in her witness statement that she was devoted to sports before the Accident, she gave, I note, no particulars at all of such sports activities she participated prior to the Accident[64]. In the RSOD and in the Joint Report, she only mentioned about jogging (she said in the box she did that in order to reduce weight for her marriage in 2012) before the Accident and no more.

175.  One last aspect of Ms Yau’s loss of amenities not challenged by defence (and, for this reason, I would accept) is her evidence in her witness statement dated 17 Dec 2015 that she had to avoid carrying[65] her first newborn baby (born in 2013) due to her injuries in the Accident. This, I accept, is considerable loss of amenities to her in terms of her mother-and-child relationship and her self-esteem as a responsible mother. But such joy and duty is, one thinks, short-lived as the child would grow up with time such that carrying is no longer required.

176.  In this respect, I also accept Ms Yau’s evidence, supported by Dr Lee’s opinion in the Joint Report, that she has, due to residual neck and back pain she suffers as a result of the Accident, impaired lifting capacity to perform strenuous activities such as lifting weight (though Dr Lee also opined, and I agree, that her overall neck and back function should still be in the satisfactory state).

Pain, suffering & loss of Amenities (PSLA)

177.  At his opening, Mr Lung reduced Ms Yau’s claim for PSLA award to one of $180,000 to $220,000. Mr Lai suggested in closing an award in the range of $60,000 to $80,000 whereas Mr Lo submitted in closing that any award should not exceed $100,000.

178.  Learned counsels have cited altogether a total of 12 comparable authorities[66]. Having carefully compared their circumstances against those of this case, I find the 3 cases cited at para 46.1, 46.3 and 46.4 of Mr Lung’s written opening submissions[67] more comparable to our case than the cases cited by Mr Lai or Mr Lo.

179.  All things considered, including having taken inflation into account, I consider an appropriate PSLA award in the circumstances of this case to be $180,000.

Loss of earning capacity

180.  By his closing submissions, Mr Lung reduced Ms Yau’s claim for loss of earning capacity to a sum equal to 2 months’ of her monthly earnings i.e. $25,150, it being her case and evidence (that I accept) that she earned on average $12,575/month at the material times according to her tax documents.

181.  Mr Lai helpfully reminded this court to the applicable principles on this head set out in Yu Kok Wing v Lee Tim Loi [2001] 2 HKLRD 306, 311J-312F[68].

182.  The 1^st stage consideration of this head requires me to consider whether or not there is a “substantial” or “real” risk that a plaintiff will lose his present job at some time before the estimated end of his working life.

183.  For reasons below, I do not think this 1^st stage was met in this case.

(1)  Ms Yau, she said in the box, is a Form 5 graduate that has enrolled in secretarial course.

(2)  According to tax documents produced, she worked as a receptionist in 2010-2011 tax year before she joined Target Insurance Co Ltd (Target) as an administrative assistant.

(3)  Her main duties with Target, according to para 5 of her witness statement, are receiving guest by sitting at reception for long time[69], answering telephone calls and using computer to do words processing works.

(4)  While I believe Ms Yau may be incidentally required to handle and move lever arch files in the course of her works with Target[70], I find it unlikely her main duties. Put another way, unlike a construction worker, she is not frequently required to lift heavy weight from time to time in the course of her works.

(5)  As such, I find Ms Yau a clerical worker before the Accident.

(6)  On my findings above, she has already made satisfactory recovery of soft tissue injuries to her neck, back and right ankle by about end of Apr 2012.

(7)  Accordingly, I agree with Dr Chiang’s opinion in the Joint Report that Ms Yau should be able to work in the pre-injury job with a satisfactory capacity. Indeed, Dr Lee also considered Ms Yau working all along as a clerical worker and impairment in employability is not expected.

(8)  Hence, I cannot find any real risk of her losing her job with Target due to injuries she received in the Accident.

(9)  In so far Ms Yau raised for the first time in the box of losing promotional prospect in Target due to her injuries in the Accident, I have great doubt of such claim as it was not said specifically in her witness statement[71]. In any event, this is not her pleaded case for this head in RSOD, which referred to her having risk of her being sacked and difficulty of finding another job in the future.

(10)  In fact, as Ms Yau admitted in the box, she left Target in 2016 on her own due partly to her birth of a 2^nd child in 2016 and thereafter became a housewife financially dependent on her husband in part.

(11)  Since such departure from Target in 2016, as was also said by her in the box, she has not tried finding jobs thereafter and has never reapplied to work in Target again.

(12)  Though it is not uncommon for married housewife with children to return to labour market after the children have grown up and the remaining length of estimated working life of Ms Yau remains long in view of her age today, in view of her training, past working experience and family circumstances, I think it unlikely that she would seek blue collar jobs requiring lifting in the future. More likely than not, she would seek clerical jobs that she did in the past.

(13)  As such, Dr Lee’s opinion in the Joint Report that Ms Yau may have difficulty returning to jobs that require lifting is, I think, neither here nor there.

(14)  And I cannot therefore find any real risk of Ms Yau being handicapped in the labour market should she really return to it in the rest of her working life.

184.  This head, I therefore conclude, fails on the 1^st stage.

Special damages

Medical expenses

185.  Mr Lai agreed to plaintiff’s claim of medical expenses in the total sum of $25,610. They are well supported by documents. Mr Lo also agreed to such total sum spent by Ms Yau but disputed her entitlement to 2 items thereof.

186.  Mr Lo first submitted that Ms Yau’s consultation with Dr Chang in Mar 2012 had nothing to do with the Accident or her injuries in the Accident. I disagree. While she “mainly” complained of right elbow symptoms in that consultation, she also made that visit to Dr Chang “for the management of the residues from 1 Nov 2011” according to Dr Chiang at the Joint Report.

187.  Mr Lo next submitted that such chiropractic treatment Ms Yau has received was not recommended by medical practitioner nor endorsed by the 2 Experts. Again, I disagree. First, Dr Tan, a medical practitioner, did refer Ms Yau to receive chiropractic treatment[72]. Secondly, while the 2 Experts only considered conservative treatments of medication and physiotherapy given to Ms Yau appropriate, they both also said at the Joint Report that chiropractic treatment is a common treatment modality that patients would look for in cases of back and neck pain.

188.  I therefore allow medical expenses of $25,610 claimed by Ms Yau in full.

Tonic food

189.  Ms Yau’s claim for tonic food fails, I think, for the simple reason of lack of evidence of her consumption.

Travel expenses

190.  I allow travel expenses as parties agreed in the sum of $1,000.

Summary

191.  On my assessment, the total amount of damages payable to Ms Yau for injuries she sustained in the Accident is therefore $206,610 i.e. $180,000 + $25,610 + $1,000.

Disposition of main action

192.  Accordingly, I enter judgment in plaintiff’s favour against the 1^st defendant in the sum of $206,610 together with interest on PSLA award of $180,000 at 2% p.a. from the date of service of the writ to the date of this judgment and also interest on special damages in sum of $26,610 at half judgment rate from the date of the Accident to the date of this judgment.

193.  And I dismiss plaintiff’s claim against the 2^nd defendant.

Costs of main action

194.  As agreed by all parties in closing, submissions on the costs of the main action are to be made by all 3 parties, and decided by this court, after this judgment is handed down.

Disposition, and costs, of the Contribution Proceedings

195.  Submissions on such order(s), if any, to be made in the Contribution Proceedings and on the costs order to be made therein are also to be made by D1 and D2, and decided by this court, after this judgment is handed down.

Directions for further submissions

196.  I direct parties to discuss among themselves, to endeavor, if practicable, to agree on the matters in the preceding 2 paragraphs and to jointly report in writing to this court within 14 days of this judgment or such extended time this court allows on application by joint letter:

1)   the contents of such full or partial agreement, if any, they have reached;

2)   the issues that require this court to resolve on such areas they disagree among themselves (or the different orders that the parties propose this court to make);

3)   whether or not the parties agree for this court to resolve the disputed issues on paper without oral hearing and, if agreed, what directions for filing and service of written submissions the parties propose this court to make; and

4)  if no to 3) above, what directions of filing and service of skeleton submissions and what length of oral hearing required for resolving the disputed issues they propose this court to make and arrange.

197.  The parties are at liberty to apply jointly for such other directions for making further submissions if required.

198.  Finally, it remains for me to thank all 4 counsels for their submissions and assistance.

	(LEE Siu-ho)
	Deputy District Judge

Mr Vincent LUNG and Ms Ivy HO, instructed by Messrs. K. H. Teh & Co., for the Plaintiff

Mr Brian LO, instructed by Messrs. Huen & Partners, for the 1^st Defendant

Mr Alex Y.H. LAI, instructed by Messrs. Li & Partners, for the 2^nd Defendant