ANGBUHHANG NETRA JANG v. LAING O’ROURKE CONSTRUCTION HONG KONG LTD AND ANOTHER

HCPI 69/2015

[2023] HKCFI 2528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 69 OF 2015

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DECISION ON
ENHANCED INTEREST ON COSTS

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1.  By a judgment dated 20 November 2020 ([2020] HKCFI 2928), I dismissed the plaintiff’s claim after trial and made an order nisi that he should pay the defendants’ costs of this action, to be taxed on a party and party basis if not agreed, and that the plaintiff’s own costs prior to the discharge of his legal aid certificate should be taxed in accordance with the Legal Aid Regulations (Cap 91A)  (“Costs OrderNisi”).

2.  The plaintiff issued the writ of summons herein on 23 January 2015.  Before that, he had been granted legal aid on 3 July 2014.  His legal aid certificate was discharged on 29 February 2016.

3.  It subsequently transpired that the defendants had made a total of 4 sanctioned payments adding up to $800,000 on 29 January 2015, 9 December 2015, 22 January 2016 and 24 March 2016.  The last day on which the plaintiff could have accepted the first of the defendants’ sanctioned payments (in the amount of $200,000)  without leave of the court was 26 February 2015.

4.  On 26 January 2021, upon the defendants’ application by summons dated 4 December 2020 (“Summons”)  pursuant to Order 22 rule 23 of the Rules of the High Court (Cap 4A)  (“RHC”), I varied the Costs Order Nisi as follows (“Varied Costs Order”)  on the grounds set out in the reasons for decision on costs handed down herein on 27 January 2021:

(1)  that the plaintiff shall pay the defendants costs up to and including 26 February 2015 to be taxed on a party and party basis if not agreed and thereafter on an indemnity basis, to be taxed if not agreed;

(2)  that the plaintiff shall pay enhanced interest at 10% above the judgment rate on each payment of costs incurred by the defendants after 26 February 2015 from the date of payment by the defendants’ insurers up to the date of judgment;

(3)  that the sanctioned payments, together with any interest accrued thereon, shall be paid out to the defendants’ solicitors forthwith; and

(4)  that the costs of the defendants’ application to vary the Costs Order Nisi should be paid by the plaintiff to the defendants, to be taxed on an indemnity basis if not agreed.

5.  It is common ground that the DLA is liable to pay the defendants’ costs only for the period during which the plaintiff was legally aided so that such liability ceased on 29 February 2016 (i.e. the date of discharge of the plaintiff’s legal aid certificate).  Such costs has been agreed at $170,192 (excluding interest). 

6.  As for the enhanced interest on costs, the DLA has also accepted liability up to 29 February 2016 (i.e. the date of discharge of the plaintiff’s legal aid certificate). 

7.  Dispute has, however, arisen because the defendants insist that the DLA should further bear the enhanced interest on their costs incurred after 29 February 2016 up to the date of judgment (i.e. 20 November 2020), notwithstanding the discharge of the plaintiff’s legal aid certificate on 29 February 2016.

8.  By their solicitors’ letter dated 3 August 2022 to the court (enclosing their correspondence with the DLA from 14 April 2022 to 19 July 2022), the defendants apply for further “variation” of the Varied Costs Order by adding this paragraph: “To the extent that the [DLA] is liable to pay the Defendants costs during the legally aided period from 26 February 2015 to 29 February 2016, DLA shall pay the said enhanced interest on such costs from the date of each such payment by the Defendants’ insurers up to the date of Judgment.” (“Application”). 

9.  I can see no basis to accede to the Application.

10.  First, the DLA’s liability to bear the costs ordered against an aided person is governed by s 16C of the Legal Aid Ordinance (Cap 91)  (“LAO”).  In none of the situations provided for in s 16C is the DLA liable for costs incurred outside of the legally aid period, over which he has no control over the aided person’s conduct of the proceedings.

11.  Second, the defendants accept that the DLA’s liability for the defendants’ costs ceased upon the discharge of the plaintiff’s legal aid certificate on 29 February 2016.  It is, to my mind, illogical and absurd for the defendants to then contend that the DLA should pay the enhanced interest ordered over any part of the costs which the DLA does not have to pay as a matter of law.

12.  Third, I most certainly disagree with the defendants’ purported reading of the Varied Costs Order which plainly does not whether expressly or impliedly require the DLA to bear the enhanced interest that accrued after 29 February 2016 or even deal with the DLA’s liability to pay the defendants’ costs or the interest thereon ordered against the plaintiff.

13.  As is normal practice, I had no intention whatsoever to affect the extent to which the DLA is liable to pay the costs and the enhanced interest on costs ordered against the plaintiff which matter is, as stated in [10] above, regulated by s 16C of the LAO.  As for the defendants, they had not, whether in the Summons or the supporting affirmation or submission relating to the Summons, raised the issue of the DLA’s liability for enhanced interest. 

14.  Fourth, the citation of Thapa Hari Bahadur v Paramount Engineering & Manpower[2022] HKCFI 1305 is misleading.  Madam Justice Au-Yeung was there ordering the plaintiff, not the DLA, to pay the defendants’ costs up to the date of judgment.  The DLA did not feature at all in the order made by Au-Yeung J.

15.  Last, the courts’ encouragement of procedural economy does not excuse litigants from observing the rules of the court.  In this instance, the defendants make the application purportedly pursuant to Order 20 rule 8 of the RHC.  However, rule 8(3)  expressly stipulate that rule 8 shall not have effect in relation to a judgment or order.  It is also suggested that the omission of the proposed addition to the Varied Costs Order was “an accidental slip or omission”, which is the language used in Order 20, rule 11. It should have been obvious from the above discussion that there was no slip or omission on the part of the court.  In any event, an application like the present one should have been made formally by summons and not casually by a letter to the court. 

16.  For the above reasons, I dismiss the Application.  I also order the defendants to pay the DLA’s costs of dealing with the issue of enhanced interest, including the costs of the pre-Application correspondence, which I will summarily assess. For this purpose, the DLA should file and serve his statement of costs within 7 days from the date of this decision and the defendants should file and serve their statement of objections (if any)  within 7 days thereafter.  In preparing their said respective statement, the parties should know that I propose to assess the DLA’s costs on the basis that I would have ordered indemnity costs in favour of the DLA had I directed taxation.  In my view, the Application is so bad, substantively and procedurally, as amounting to an abuse of process, which the court should disapprove of by awarding costs on the most generous basis to the opposite party.

Messrs Kennedys, for the defendants

Mr Ip Tung-shing Eric, Legal Aid Counsel, for the Director of Legal Aid

HCPI 69/2015

[2021] HKCFI 232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 69 OF 2015

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REASONS FOR DECISION ON COSTS

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1.  By a judgment handed down on 20 November 2020[1], I dismissed the plaintiff’s claim and made an order nisi that the plaintiff should pay the defendants’ costs of this action, to be taxed on a party and party basis if not agreed, and that the plaintiff’s own costs prior to the discharge of his legal aid certificate[2] should be taxed in accordance with the Legal Aid Regulations.

2.  Before the court is a summons dated 4 December 2020 issued by the defendants pursuant to Order 22 rule 23 of the Rules of the High Court (Cap 4A) to vary the said costs order nisi for:

(1)  taxation of the defendants’ costs incurred after 26 February 2015 on an indemnity basis; and

(2)  interest on the costs incurred after 26 February 2015 at the maximum enhanced rate of 10% above judgment rate.

3.  The defendants so applied on the basis that they had made a total of 4 sanctioned payments adding up to $800,000, the earliest of which was one of $200,000 made on 29 January 2015.  The last day on which the plaintiff could have accepted such first sanctioned payment without requiring the leave of the court was 26 February 2015.

4.  According to the affirmation of Yip Mei Ling dated 3 December 2020 for the defendants, the defendants’ insurers have incurred total legal fees and disbursements of $649,705.30 after 26 February 2015 paid from 1 April 2015 to 22 June 2020.

5.  Where a plaintiff fails to obtain a judgment better than the defendant’s sanctioned payment, the adverse costs consequences provided for in Order 22, rule 23 should be imposed unless the court considers it unjust to do so.  See rule 23(5).

Indemnity costs

6.  I can see no injustice in making the plaintiff, or the Director of Legal Aid before the discharge of the plaintiff’s legal aid certificate, pay costs on an indemnity basis after the last date on which the defendants’ first sanctioned payment could have been accepted without leave, i.e. 26 February 2015.  In particular, that the plaintiff had been legally aided for part of the period did not immunize him from such adverse costs order.  See Lai Sin Yan Elsie v Tata Communications (Hong Kong) Ltd [2020] 4 HKLRD 363, in which Bharwaney J ordered indemnity costs against a legally aided plaintiff because “failing to grant an adverse costs order will serve as an encouragement to legally aided parties to pursue unrealistic and exaggerated claims, which will in turn be an unnecessary and unjustified strain on the public fund”.  See, in particular, [18]-[27].  See also Shih Pik Nog v G2000 (Apparel) Ltd [2011] 4 HKLRD 121.

Enhanced interest

7.  In OMV Petrom SA v Glencore International AG(No 2) [2018] 1 All ER 703; [2017] EWCA Civ 195 at [38]-[39], Sir Geoffrey Vos C set out the relevant considerations in the award of enhanced interest on costs, in particular, that it can be awarded at a rate that is greater than purely compensatory to mark the court's disapproval of a party’s unreasonable or improper conduct.

“[38] In my judgment, the use of the word ‘penal’ to describe the award of enhanced interest under CPR 36.14(3)(a) is probably unhelpful. The court undoubtedly has a discretion to include a non-compensatory element to the award as I have already explained, but the level of interest awarded must be proportionate to the circumstances of the case. I accept that those circumstances may include, for example, (a) the length of time that elapsed between the deadline for accepting the offer and judgment, (b) whether the defendant took entirely bad points or whether it had behaved reasonably in continuing the litigation, despite the offer, to pursue its defence, and (c) what general level of disruption can be seen, without a detailed inquiry, to have been caused to the claimant as a result of the refusal to negotiate or to accept the Part 36 offer. But there will be many factors that may be relevant. All cases will be different. Just as the court is required to have regard to ‘all the circumstances of the case’ in deciding whether it would be unjust to make all or any of the four possible orders in the first place, it must have regard to all the circumstances of the case in deciding what rate of interest to award under rule 36.14(3)(a). As Lord Woolf MR said in the Petrotrade case, and Chadwick LJ repeated in the McPhilemy case, this power is one intended to achieve a fairer result for the claimant. That does not, however, imply that the rate of interest can only be compensatory. In some cases, a proportionate rate will have to be greater than purely compensatory to provide the appropriate incentive to defendants to engage in reasonable settlement discussions and mediation aimed at achieving a compromise, to settle litigation at a reasonable level and at a reasonable time, and to mark the court's disapproval of any unreasonable or improper conduct, as Briggs LJ put the matter, pour encourager les autres.

[39] The culture of litigation has changed even since the Woolf reforms.  Parties are no longer entitled to litigate forever simply because they can afford to do so.  The rights of other court users must be taken into account.  The parties are obliged to make reasonable efforts to settle, and to respond properly to Part 36 offers made by the other side.  The regime of sanctions and rewards has been introduced to incentivise parties to behave reasonably, and if they do not, the court’s powers can be expected to be used to their disadvantage.  The parties are obliged to conduct litigation collaboratively and to engage constructively in a settlement process.”

8.  OMV Petrom SA was considered in Wong Giles v Donowho Simon Christopher[2020] HKCFI 1053, in which K Yeung J ordered the plaintiff to pay interest on the defendants’ costs at the maximum enhanced rate of 10% above judgment rate, having regard to the plaintiff’s conduct, in particular, that he was untruthful, his conduct disgraceful, and the way he prosecuted his claim affronting to the court (see [19] and [27]).

9.  In the personal injuries context, OMV Petrom SA was considered in Yeung Ho Man v Shum Kin Leung[2020] HKCFI 2781 in which Bharwaney J awarded enhanced interest at 10% above judgment rate having regard to the egregious character of the plaintiff’s conduct (see [17] and [23]). 

10.  In Grupo Pacifica Incorporada v Worldwide Marine Product Ltd[2018] HKCFI 2584, Au-Yeung J similarly ordered the first defendant to pay interest on the plaintiff’s costs at the enhanced rate of 10% above judgement rate because the defences were devoid of merits or only faintly argued (see [17]).  Her Ladyship commented at [19]:

“These proceedings should never have been defended. Damages, costs and statutory interest would not compensate the successful plaintiff for the inconvenience, anxiety and distress of having to resort to and pursue proceedings which he had sought to avoid by the sanctioned offer: McPhilemy v Times Newspaper Ltd (No 2) [2002] 1 WLR 934 at §21. Indemnity costs and enhanced interest rate were not unjust.”

11.  In dismissing the plaintiff’s claim herein, not only did I disallow him to run a case on liability based on an account of the accident that did not emerge until the first day of the trial, I disbelieved such account because the manner in which the accident happened was expanded and added to so much in the new version that the complexion of the case on liability had altogether changed.  Further, although it had become unnecessary for me to deal with quantum as a result of my findings on the accident and conclusion on liability, I was convinced that the plaintiff had manifestly exaggerated his case on quantum in terms of the physical injuries that he sustained, the residual pains and impairments left by such injuries, his earnings at the time of the accident and whether, and if so, when he could have resumed his pre-accident occupation.

12.  Needless to say, I strongly disapprove of such litigation conduct.

13.  The 4 sanctioned payments were made at a very early stage of proceedings between January 2015 and March 2016.  There were ample opportunities for the plaintiff to settle the case early on terms that were exceedingly favourable to him.  Even if the court were to find liability, the plaintiff’s non-acceptance of the sanctioned payments is still unreasonable having regard to his relatively minor injuries.  As a result, much of the court’s resources and the parties’ time and costs had been wasted.

14.  I am persuaded that I should exercise my discretion to include a non-compensatory element to the award of interest.  I believe 10% above judgment rate is proportionate to the circumstances of this case.

Disposition

15.  I order the plaintiff to pay the defendants costs up to and including 26 February 2015 to be taxed on a party and party basis if not agreed and thereafter on an indemnity basis, to be taxed if not agreed.

16.  I also order the plaintiff to pay enhanced interest at 10% above judgment rate on each payment of costs incurred by the defendants after 26 February 2015 from the date of payment by the defendants’ insurers up to the date of judgment.

17.  The sanctioned payments totalling $800,000 made into court by the defendants on 29 January 2015, 9 December 2015, 22 January 2016 and 24 March 2016 together with any interest accrued thereon should be paid out to the defendants forthwith through their solicitors, Kennedys.

18.  The costs of this application to vary the costs order nisi dated 20 November 2020 should be paid by the plaintiff to the defendants, to be taxed on an indemnity basis if not agreed.

The plaintiff, unrepresented and absent

Mr Simon Wong, instructed by Kennedys, for the defendants

HCPI 69/2015

[2020] HKCFI 2928

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 69 OF 2015

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JUDGMENT

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1.  In this action, the plaintiff, Mr Angbuhhang Netra JANG (“Mr Jang”), seeks damages for injuries to his right middle finger and left middle and ring fingers and other consequential loss and damage which he claims to have suffered as a result of his said fingers being trapped inside, and squashed by, a bundle of steel re-bars while it was being lifted onto the loading platform of a truck-mounted crane on 24 November 2014.

A.     Overall credibility and reliability of plaintiff’s case

A1.    Mr Jang as a witness

2.  Mr Jang’s case on both liability and quantum was based largely upon his own assertions (with some support from his friend and co-worker, one Mr Rabin Kumar Limbu (“Mr Limbu”), whose credibility and reliability I shall deal with under the next heading).  The defendants disputed most of Mr Jang and Mr Limbu’s assertions.

3.  In assessing a witness’ evidence on any issue, in addition to observing his demeanour in the witness stand, I have tested his testimony by asking whether it is inherently plausible/implausible and whether it is, in a material way, contradicted by other evidence that is undisputed or indisputable, if any.  See R v Ng Wing Ming [1995] 1 HKLR 64, per Litton JA at 65, 67; Four Seas Fish Balls Co Ltd v Yeung Hung Sin, HCA 4159/2003, unreported, per Chung J at [20]; Profit Boat Development Ltd v Craft Projects (HK) Co Ltd, HCCT 122/2000, unreported, per Recorder R Yuen SC at [16]; and Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513, per Deputy High Court Judge Au (as he then was) at [53].

4.  Mr Jang was cross-examined by counsel for the defendants, Mr Simon Wong, in great detail.  Having seen his performance under cross-examination for 3 days, I saw the need to remind myself to be cautious in evaluating his evidence.

5.  First, I find Mr Jang guarded, defensive and sometimes argumentative.  He was not at all forthcoming.  He often evaded perfectly legitimate questions.  He frequently gave answers that did not actually address the questions being put to him.  Many questions had to be repeated, often multiple times, not just by counsel but also by the court. 

6.  Second, even giving due allowance for understandable loss of memory due to lapse of time, Mr Jang’s evidence was sometimes internally inconsistent and sometimes at odds with other evidence. What he said in court was often contradicted by or at variance with what was recorded in a contemporaneous document (e.g. the symptoms and complaints he reported to his treating doctors and occupational therapists before mid February 2013, the bank statements showing the exact amount of wages that he received from the employment with the 1^st defendant for November 2012 etc).

7.  It will be seen from below that not only do I disallow Mr Jang to run his case on liability based on an account of the accident that did not emerge until the first day of the trial, I disbelieve such account.  The manner in which the accident happened was expanded and added to so much that the complexion of the case on liability has altogether changed.

8.  Further, although it has become unnecessary for me to deal with quantum as a result of my findings on the accident and conclusion on liability, I am convinced that Mr Jang has manifestly exaggerated his case on quantum in terms of the physical injuries that he sustained, the residual pains and impairments left by such injuries, his earnings at the time of the accident (not just his wages from the 1^st defendant which he inflated from just over $30,000 to $38,000 per month but also mentioning for the first time in his written opening submission a $4,000 part-time night time job for which there was not an iota of objective proof) and whether, and if so, when he could have resumed his pre-accident occupation. 

9.  While I have to consider and assess the evidence on each issue individually and issue by issue, the fact that Mr Jang had been discredited over one or more matters to which he had testified is relevant to the assessment of his overall credibility and reliability.  Where there is a dearth of or little objective evidence against which Mr Jang’s bare assertions can be tested (e.g. on how the accident occurred), I allow myself to be guided by the impression that I have formed as to Mr Jang’s overall credibility and reliability.

A2.    Mr Limbu

10.  According to Mr Limbu, he had known Mr Jang for 1 to 2 years before the accident.  Mr Jang obtained the employment with the 1^st defendant through the introduction of Mr Limbu. The two gentlemen worked together in a team on the relevant lifting operation, in the course of which the accident occurred.  Mr Limbu was therefore an important witness on the occurrence of the accident and liability.

11.  Mr Limbu also confirmed under re-examination by Mr Jang that he, acting upon the instructions of the defendants after the accident, escorted Mr Jang to go back to the Site daily from 28 November 2012 until 30 January 2013 just to compel Mr Jang to clock in and clock out and stay at the Site to perform light duties which even included some overtime work.  The supposed benefit to the defendants was to enable them to run the false case that Mr Jang had recovered well enough from his injuries to resume his pre-accident employment within a matter of days.

12.  Mr Limbu claimed that his relationship with Jang had thus turned sour after 31 January 2013.

13.  It will be seen from below that although Mr Limbu was obviously called to corroborate Mr Jang’s evidence on the accident and on his claim for loss of earnings, there were significant discrepancies between Mr Limbu’s evidence and Mr Jang’s evidence on both aspects of the case touched upon by the former.  On the inconsistencies regarding the accident, see [40] below.  As for Mr Jang’s claim for loss of earnings, contrary to what Mr Limbu told the court under re-examination, it was Mr Jang’s case that Mr Limbu acutally went to Mr Jang’s home to take him to the Site twice daily to punch his work report card, once in the morning and once in the evening.  Mr Jang did not stay behind at the Site to work at all.  He returned home after clocking in in the morning because he was sick and was not fit to work.  

14.  On the materials presently available to me, I was unable to form the view, even on a balance of probabilities, that one witness was preferable to the other.

15.  I scrutinised Mr Limbu’s evidence with vigilance.

B.     The accident

B1.    Undisputed background

16.  By way of background, Mr Jang claimed to have worked in the construction industry in Hong Kong since 1996, initially as a general labourer and later as a welder since April 2012 after he passed the examination for welders.

17.  Beginning from 1 November 2012, through the introduction of Mr Limbu, a team leader of the 1^st defendant, Mr Jang was employed by the 1^st defendant as a welder at the construction site at 38 Austin Road, Tsimshatsui, Kowloon (“Site”), at which the 2^nd defendant was the principal contractor under “Contract 810B West Kowloon Terminus Station South” and the 1^st defendant was the 2^nd defendant’s subcontractor.

18.  While his usual duties were those of a welder, Mr Jang would from time to time be instructed to help in other aspects of the 1^st defendant’s work at the Site where extra hands were needed.

19.  On 24 November 2012, Mr Jang and Mr Limbu were instructed to assist in loading some bundles of steel re-bars onto a truck mounted with a crane for transfer from the Site to another location.

B2.    The accident as pleaded

20.  According to paragraph 1(d) the statement of claim:

“At all material times, on 24 November 2012 ..., [Mr Jang] was working at [the Site].  In the course of his employment, he was required to control bundles of metal bars when the metal bars were being moved by a truck lorry. The truck lorry was old and functioning not properly.  The crane operator also controlled the truck lorry inappropriately, the bundles of metal bars suddenly lost balance, thus his fingers were trapped between metal bars.  As a result, he sustained right middle finger and left middle and (sic) finger injuries (the “Accident”).”

Mr Jang confirmed that he signed the statement of truth on the statement of claim after it was interpreted to him in full in Nepali.  He knew that he could make changes if he disagreed with anything.  Indeed, his requests to make certain additions had been heeded, e.g. a copy of the medical report dated 26 December 2013 by Dr David Ip of the Asia Medical Centre was, at Mr Jang’s suggestion, included among the medical reports served together with the statement of claim[1].

21.  Paragraph 4 of the reply averred along the same line:

“The Plaintiff avers that he was a welder but no a rigger. The task should be handled by proper and experienced riggers. The 1^st and 2^nd Defendants should not assign this task to the Plaintiff. However, the Plaintiff’s supervisor insisted to instruct him to perform this task. Moreover, the truck lorry was old and functioning not properly. The bundles of metal bars suddenly lost balance due to the old truck lorry and the crane operator’s inappropriate control. The 1^st and 2^nd Defendants should provide a properly functioning truck lorry including its crane. The Plaintiff had paid sufficient attention when he was carrying out the task.”

B3.    The accident as described in the witness statements exchanged before trial

22.  Mr Jang described the accident in paragraph 13 of his first witness statement dated 29 July 2015 by largely adopting paragraph 1(d) of the statement of claim with just necessary modifications of pronouns:

“On 24 November 2012 ..., I was working at the Site.  In the course of my employment, I was required to control bundles of metal bars when the metal bars were being moved by a truck lorry.  However, I am a welder.  The task should be handled by proper and experienced riggers.  But my supervisor insisted to instruct me to perform this task.  Furthermore, the truck lorry was old and functioning not properly.  The crane operator also controlled the truck lorry inappropriately, the bundles of metal bars suddenly lost balance due to the old truck lorry and the crane operator’s inappropriate control, thus my fingers were trapped between metal bars (the “Accident”).  As a result of the Accident, I sustained right middle finger and left middle and ring fingers injuries.”

23.  Mr Limbu was equally skimmed in his account of the accident in his witness statement dated 24 February 2015.  The relevant part of paragraph 2 reads as follows:

“Although [Mr Jang] was employed as a welder, our supervisor generally would ask every worker in our team including [Mr Jang] to help other kinds of construction works including riggers and/or banks man and/or general labourer duties.  [Mr Jang’s] duty was controlling bundles of metal bars when metal bars were being moved by a truck lorry.  The truck lorry was old and its crane machine was not functioning properly.  Therefore, I had asked the crane operator to be careful during the procedure.  Suddenly, the bundles of metal bars lost balance and [Mr Jang’s] hands were hit and injured by the metal bars (the “Accident”).”

24.  I gained the impression from reading such pleading and witness testimonies that Mr Jang’s hands somehow (although the court was not told exactly how) came into contact with, and his fingers got trapped inside, the bundle of re-bars because it became unsteady in the course of being lifted.  As to why the bundle of re-bars became imbalanced, (1) the age of the truck on which the crane was mounted, (2) the improper functioning of the crane and (3) the inappropriate control of the crane by the crane operator were blamed.  However, there was no explanation of how the mere fact that the truck was old contributed to the accident or in what ways the crane was functioning improperly or how the crane operator was manoeuvring the crane inappropriately.

B4.    The accident as described by Mr Jang in opening submission

25.  Mr Jang expanded on his account of the accident in both his written opening submission[2] and in his evidence in court.

26.  First, at page 9 of Mr Jang’s written opening submission was the following sketch of the accident, which Mr Jang said he drew himself and which was marked exhibit “P1”.

27.  Second, at pages 2 to 3, Mr Jang gave the following account of the accident (sic):

“On 24^th November 2012, I was doing welding work as normal the supervisor came to me and asked me to give hand for lifting rebar. Because he saw me with full protective equipment, however, I said that I was not the rigger but the supervisor said but he needed to remove the rebar and he said it would take a short time, 5 to 10 minutes only.

So I went to help to do the lifting, we went to the lifting area.  There was a mobile crane and some bundles of rebar which needed to be removed to a new location and my co-workers Rabin put the chain around the bundle and he hooked the shackles at the chain, he also added a tagline on it but it was too short for the purpose.  And I Said to Rabin the tagline needed to change proper longer one but he said he could not provide longer and proper tagline was lacking on the store at that time.  And he gave the signal to the operator for lifting load the operator lifted the load but Rabin could not hold the tagline as the load went up he let it go the tagline.  And the load was beyond the control.  There were some vehicles passing by the crane lorry because the crane lorry was standing on the roadside.  I saw the load moving towards upcoming vehicle on the road because the vehicle continued moving forward so I need to save upcoming hazard, if I did not save the load there should be innocent people get accident so that the situation made to use to do saved the load by my hand.  Hence the collision is saved.  But unfortunately, the crane jerked at the same time and squashed my fingers between the rebar.  This is how I got the accident.  And I issuing the operator for two reasons the first is without proper lifting tools he should not lift the load, and another, without the proper lifting capacity of the crane he should not fast operate the crane.”

28.  At pages 9 to 10, Mr Jang further said (sic):

“… there were some of the public vehicles they are moving forward continued in them own, and still rebar length was 12 meters long, when the load was lifted up and when the Rabin left the tagline the load was already beyond the control, and when the load came up on the crane lorry and the loaded length was becoming cross, which means the load end of the few meters was obstructed to the road, the tag line was too short which I could not receive, for the control of the load, but you know the public vehicle continued moving forward, and I used hand to load pulled back from the obstructed road, and the road was clear, and the crash has saved but during the clear load from the road, I also thinking the vehicle will reduce the speed but the crazy driver there I did not see reducing the vehicle speed continued forward and went and at the same time the crane operator saw the public vehicle being crazy forward and he scared and he just forget the operating system and he just boom out then the crane lifting capacity become reduced, as well as the crane lorry was too old, and then the crane jerk at the same time because the load weight was 3tons, its I find at internet which the 50mm of the new bundle rebar weight is standardized as 3tons, then I say, it means that when the crane jerk the chain was tightened again and the load weight of 3000kg forces was the bump on to my fingers from both side and squashed…”

29.  It can be seen that Mr Jang introduced the presence of an oncoming vehicle which kept moving forward in the direction of the truck-mounted crane while it was lifting a swinging bundle of re-bars with no sign of stopping, thereby creating the risk of a collision between the approaching vehicle and the lifted and swinging bundle of re-bars. 

30.  I pause to note that paragraphs 4(d) and 4(g) of the defence pleaded to the version of the accident alleged in the statement of claim, that:

“(d) As the first bundle of Re-bars was being off-loaded, the Plaintiff used his hands to push the bundle unnecessarily. There was no need for the Plaintiff to push the bundle and no one asked the Plaintiff to push the bundle.”

“(g) Even if the Re-bars did lose balance, which is denied, the Plaintiff should have known not to put his hands near the Re-bars when they were being off-loaded.”

31.  Moreover, under the particulars of contributory negligence, the defendants identified the following failures by Mr Jang in paragraph 5 of the defence:

“(a) Failing to ensure the Re-bars were placed onto the loading platform of the Crane before attempting to move them.”

“(b) Failing to ensure that the Re-bars were in a safe position before attempting to push or move them.”

“(e) Putting his hands near the Re-bars when carrying out the Task.”

“(f) Exposing himself to risk of injury when he knew or ought to have know that the Re-bars were heavy and the bundle may move if he tried to move them.”

“(g) Manually pushing or attempting to push the Re-bars which was unnecessary for him to do so.”

“(h) Pushing the Re-bars before they had been off-loaded.”

32.  It appears to me that the last-minute elaboration on the accident was to justify why, in order to avert the potential collision, Mr Jang touched the bundle of re-bars with his bare hands to divert it away from the course of the oncoming vehicle.  Mr Jang’s hands then became caught between the re-bars because the crane just happened to jerk at the same time.

B5.    The accident as described by Mr Jang in court

33.  Mr Jang gave more details under cross-examination by Mr Wong.  The accident and its surrounding circumstances that this court could pierce together from Mr Jang’s answers under cross-examination are as follows. 

34.  Each bundle of steel re-bars that Mr Limbu and Mr Jang were instructed to help moving were 12 metres in length and 3 tonnes in weight.  They were stored at a threading yard at the bottom of a graduated slope, which was about 4 to 5 metres below ground level.  The truck-mounted crane was parked on the roadside right outside the Site near the slope.  The lane on which the truck was parked was effectively closed to other traffic but there was traffic in the next lane.  Mr Limbu stood at the bottom of the slope and was responsible for attaching the shackles of the chains of the crane to the bundle of re-bars.  Mr Jang on the other hand stood on the loading platform of the truck which was about 1 metre above ground to receive and unchain the bundle of re-bars after the same was lifted over and then lowered down to the loading platform of the truck.

35.  According to these gentlemen, to enable each member of the team to control the bundle while it was in the air without any direct contact between the bundle and their bare hands, a tagline of sufficient strength and length should be attached to each end of the bundle.  To digress, Mr Jang identified the rope that was tied around the bundle of re-bars shown in the photograph at page 204 of Trial Bundle 2 as a tagline.  At page 10 of his written opening submission, Mr Jang even referred to this photograph and asked the court to note how old and short the tagline was.

36.  Coming back to the use of the 2 taglines, the person below could hold onto them with his hands while the weight was being lifted off the ground until it reached the level of the loading platform of the truck.  The person above on the loading platform could then take over by picking up the taglines with his hands and minimise any swinging motions of the bundle through controlling the taglines. 

37.  On the date of the accident, Mr Jang and Mr Limbu were not provided with any tagline. However, Mr Limbu was able to find one at the Site.  But they both thought that that tagline was too short for the purpose.  According to Mr Jang, after being tied around the bundle, only 4 metres of it were left for Mr Limbu and Mr Jang to grab.

38.  After tying the tagline he found to one end of the bundle, Mr Limbu held onto it until the last moment.  One can deduce from the position of Mr Limbu (i.e. at the bottom of the slope at about 4 to 5 metres below ground), his height and the length of the residual length of the tagline (i.e. about 4 metres according to Mr Jang) that Mr Limbu had to let go of the tagline when the bundle was lifted to about 1 metre above ground or thereabout, which was about the level of the loading platform of the truck.

39.  The bundle became unstable and started to swing sideways once Mr Limbu let go of the tagline.  Before Mr Limbu released the tagline, he shouted a heads-up to both the crane operator and Mr Jang and told them to be careful.  However, Mr Jang was apparently standing on the loading platform of the truck at a spot that was close to the end of the bundle not tied together by the tagline.  He saw a public vehicle, a double-decked bus, approaching in the next lane.  Mr Jang could see the bus driver who did not even reduce speed and who kept coming.  The tagline had swung so much that one end of the bundle of re-bars had protruded into the next lane.  To avert a potential collision between the bus and the hanging bundle of re-bars, Mr Jang tried to divert the re-bars at the end without any tagline with his hands.  His hands got caught inside the steel re-bars which moved to crush his fingers because the crane just jerked at that moment.

B6.    Mr Limbu’s evidence of the accident

40.  Mr Limbu attempted to tell more or less the same story in court except that, contrary to Mr Jang’s testimony, he was adamant that:

(1)     The truck-mounted crane was parked inside the Site on a road that belonged to the “company”.

(2)     That road was reserved for, and used only by, vehicles of the contractors that worked at the Site.

(3)     Public vehicles were not allowed to enter the Site or use the roads inside the Site.

(4)     He did not see, and there could not be, any double-decked public bus.

(5)     The vehicle that the hanging bundle of re-bars was at risk of hitting was a whitish 28-32 seater for senior staff to use on site.

(6)     That vehicle was at the material time stationary behind the truck.

(7)     The rope depicted in the photograph at page 204 of Trial Bundle 2 was not a tagline.

(8)     The tagline he found and used measured only 1.5 metres in length in total.

(9)     The hanging bundle of re-bars was swinging like a see-saw, not sideways.

B7.    The pleading point

41.  It should by now have become obvious that, by his opening submission and evidence in court, Mr Jang had put forward a different case on the accident from that pleaded for the defendants to meet.  Mr Jang’s written opening submission was not produced until the first day of the trial in breach of paragraph 2 of the pre-trial review directions dated 26 October 2017. 

42.  Worse still, the details of this new version of the accident only came out in dribs and drabs in the course of Mr Jang and Mr Limbu’s live testimonies which, as seen above, are discrepant in material aspects.  While this court accords due accommodation to unrepresented litigants, there is no licence for unfair treatment of the represented opposite party.  Counsel had very little, if any, notice of the new version of the accident.  As it were, counsel did the best he could in cross-examining Mr Jang and Mr Limbu.  This he had to do in the dark, without being backed up by informed instruction which was formulated after due investigation of the plaintiff’s case and which counsel had had no or no reasonable opportunity to take.

43.  In Sinoearn International Ltd v Hyundai CCECC Joint Venture (2013) 16 HKCFAR 632, Ribeiro PJ said [30]:

“… A party must raise all the issues he wishes to raise to be dealt with at the trial. Parties are not entitled to have issues recently thought up dealt with separately and piecemeal. The other party is entitled to know from a clear pleading what is the entire case he has to meet so that he can decide whether particulars should be sought; how he should plead in response; what discovery he is entitled to; what evidence he should adduce to meet it; and what points of law should be taken.”

44.  In Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663, Ma CJ said at [21]:

“It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues:- Wing Hang Bank Limited v Crystal Jet International Limited. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced.”

45.  In Mak Kang Hoi v Ho Yuk Wah David (2007) 10 HKCFAR 552, Ribeiro PJ said in [102]:

“However, industrial accident cases often raise thepleading point more clearly than others. If the accident is not shown to have taken place in the way or at the place alleged usually the plaintiff must fail. The defendant has pleaded and prepared his case to meet the case alleged and no other.”

46.  I agree with Mr Wong that Mr Jang should not be allowed to run a case on liability based on the new version of the accident which he sought to advance on the first day of the trial.

B8.    New account incredible anyway

47.  In any event, having carefully reviewed the whole body of evidence before me and guided by the general unfavourable impression that I have formed of Mr Jang and Mr Limbu’s overall credibility and reliability, I would not have felt able to act on their evidence even on a balance of probabilities. 

48.  In other words, even if he had been permitted to rely on the new version of the accident regardless of his pleadings, I would have found such accident incredible and that Mr Jang had not discharged the burden of proving the accident as described by him in his written opening submission and in his and his witness’ evidence in court.

49.  First, this version of the accident did not emerge until the first day of the trial.  There was not a hint of it in the pleadings and witness’ statements served by Mr Jang.  If the accident had truly happened as he now described, one would have expected him to give instructions and his legal advisors to prepare Mr Jang’s pleadings and witness’ statements accordingly.  There was no explanation as to why Mr Jang had kept such version to himself for so long.

50.  Second, the new account of the accident by Mr Jang does not tally with other objective evidence. 

51.  In this regard, at pages 203 and 204 are 2 photographs disclosed by the defendants as photographs of the scene of the accident (“Scene Photographs”).  The disclosure was made by a letter dated 10 August 2017 from the defendants’ solicitors to Mr Jang himself as he had by then started to act in person.  Copies of these and 2 other photographs were grouped under the description “Copy of photographs of the Plaintiff and the Accident Scene”.  By this letter, the defendants also proposed to include the photographs under the same description in the Trial Bundles.

52.  By a letter received by the defendants’ solicitors on 15 September 2017, Mr Jang expressly agreed to the proposed Trial Bundle indices including the insertion as item 36 of “Copy photographs of the Plaintiff and the Accident Scene”.  The photographs of the accident scene were those at pages 203-204 of Trial Bundle 2. Both Mr Jang (and Mr Limbu) now sought to dispute that the accident occurred at the scene depicted in the Scene Photographs[3].

53.  The long and short of it is that an accident as described by Mr Jang could not have happened at a scene as shown in the Scene Photographs, according to which the relevant part of the Site was surrounded, and separated from the public road, by hoardings.  Such hoardings would have prevented Mr Jang from seeing any public vehicles proceeding on the road outside the Site or the lifted bundle of re-bars from hitting any public vehicles.

54.  Last but not least, I am unimpressed by the discrepant manner in which Mr Jang and Mr Limbu described key aspects of the accident.  I repeat [40] above.

C.     Disposition

55.  As observed by Ribeiro PJ in Mak Kang Hoi v Ho Yuk Wah David, supra, at [102], in an industrial accident case, if the accident is not shown to have taken place in the way alleged on pleading, usually the plaintiff must fail[4].

56.  This case is worse in that Mr Jang sought, but failed, to establish an accident that had taken place in a manner different from that alleged on pleading.

57.  For the above reasons, I dismiss Mr Jang’s claim. 

58.  I also make an order nisi that Mr Jang should pay the defendants’ costs of this action, to be taxed on a party and party basis if not agreed.  Mr Jang’s own costs prior to the discharge of his legal aid certificate should be taxed in accordance with the Legal Aid Regulations.

[1] See paragraph 7(iv) of the statement of claim.

[2] Which he verified under oath and adopted as part of his evidence in chief.

[3] Having proceeded on the basis that the Scene Photographs were agreed documents, it was not surprising that the defendants had not been prepared to call, or even trace, the person who took these photographs.

[4] See [45] above.