AMJAD-UL-MAHMOOD v. PROFIT HILL INTERNATIONAL HOLDINGS LTD AND ANOTHER

DCPI 534/2017

[2023] HKDC 940

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 534 OF 2017

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DECISION

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Background

1.  Judgment was handed down on 21 March 2023 (“the Judgment”). I shall adopt the same abbreviations and nomenclatures in the Judgment.

2.  This court has, in the Judgment, dismissed P’s claims against D1 and D2, with a costs order nisi against P that P do pay costs of D1 and D2, with Certificate of Counsel, to be taxed if not agreed.

3.  On 3 April 2023, P took out summons seeking leave to appeal against the Judgment.

Leave to Appeal-Legal Principles

4.  Under Section 63A (2) of the District Court Ordinance, Cap 336 (“DCO”), leave to appeal shall not be granted unless the court is satisfied that:

(a)  The appeal has a reasonable prospect of success; or

(b)  There is some other reason in the interests of justice why the appeal should be heard.

5.  As stated by Le Pichon JA in SMSE v KL [2009] 4 HKLRD 125 at §17:

“reasonable prospects of success involve the notion that the prospects of succeeding must be reasonable and therefore more than fanciful, without having to be probable”

6.  As noted by both Mr Gidwani and Mr Tsui, P’s Purported Grounds of Appeal deal with finding of facts.

7.  In respect of challenge against finding of facts by a trial judge, Mr Gidwani and Mr Tsui referred to the following cases.

8.  As held by His Honour Judge Andrew Li in Mak Rachel Wing Nam v Chan Kai Chung[2023] HKDC 581:

“6. However, as Mr Simon Wong for the defendant has submitted, the plaintiff has conveniently overlooked the important principle that, in respect of a challenge against factual findings made by a trial judge, the appellant has to overcome a very high threshold in order to succeed. The Court of Appeal would only intervene if, despite the fact that it does not enjoy the advantages available to the judge who received the evidence at first-hand, it is nevertheless satisfied that his or her conclusion on the facts is wrong: Ting Kwok Keung v Tam Dick Yuen & others (2002) 5 HKCFAR 336, §42. It has been said that an appeal is not a forum for the appellant to repeat the submissions which are (or should be) submissions advanced by way of closing submissions at the trial. The appellant must have to identify “palpable errors” in the judgment below sufficiently material to warrant the intervention by the Court of Appeal: China Gold Finance Ltd v CIL Holdings Ltd and Others (unreported, CACV 11/2015, 27/11/2015), §§14 to 15.

7. Mr Wong further submits that the trial court is the primary tribunal for assessment of the evidence and making relevant findings of fact. The appeal court should defer to the trial judge’s conclusion even if in some doubt as to its correctness, because it is unlikely to gain as much insight to the facts from seeing how the evidence unfolded, or be as familiar with the evidence as the primary judge, who has lived with the trial from beginning to end: Shine Grace Investment Ltd v Citibank NA & another[2022] HKCA 1341 at §60(2).”

(emphasis added)

9.  In Yeung Cheung Chun v Wing Shing Caisson & Foundation Ltd and Anor, unrep, CACV 39/2015, 25 April 2016, the Court of Appeal stated:

“35. The starting point must be the proper approach of an appeal court in challenging a finding of fact. It is sufficient to refer to the recent decision of China Gold Finance Limited v CIL Holdings Limited & Ors, CACV 11/2015, 27 November 2015, §§11 to 24 for these pertinent propositions:

(1) It is not appropriate for the Court of Appeal to take over the role of the trial judge as the primary assessor of the evidence. The appeal court does not and should not embark on the role of re-assessment of the evidence in the way Mr Wong has invited us to do.

(2) It is incumbent on the appellant to identify palpable errors in the judge’s assessment of the evidence that are sufficiently material to undermine his conclusions. The assertions that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below or that the judge had overlooked certain evidence because it was not mentioned in the judgment are not errors that come within that category. Unless there is compelling evidence to the contrary, an appeal court is bound to assume that the trial judge has taken the whole of the evidence into his consideration.

(3) In making findings of fact, judges can reasonably reach different conclusions from one another. The appeal court can only intervene when it is satisfied that the finding of the primary judge is “plainly wrong”. This phrase “plainly wrong” directs the appeal court to consider whether it was permissible for the trial judge to make the findings of fact he did in the face of the evidence as a whole, in the knowledge that the appeal court only has the printed record of the evidence and whose perception may be narrowed or even distorted by the focused challenge to particular parts of the evidence.

(4) A finding of fact made by the trial judge is an inherently incomplete statement of the impression upon him of the evidence.

(5) There is a greater appreciation of the need to exercise restraint in respect of findings of secondary fact based on inferences drawn from findings of primary fact.”

(emphasis added)

10.  In Yu Man Fung Alice v Chiau Sing Chi Stephen[2021] HKCA 1456, it is said that:

“8. In exercising their appeal as of right to challenge findings of fact of the primary judge, litigants should bear in mind that the trial before the judge would be “the main event” and not a “tryout on the road”. As stated by Lam VP (as he then was) in To Pui Kui v Ng Kwok Piu & Ors, CACV 281/2012, 21 August 2014 at §§12 to 16, and in China Gold Finance Ltd v CIL Holdings Ltd, CACV 11/2015, 27 November 2015 at §24, institutionally it is not appropriate for the Court of Appeal to take over the role of the trial judge as the primary assessor of the evidence.” (emphasis added)

11.  Detailed analysis was set out in ZJW v SY [2017] HKCA 614 by the Court of Appeal:

“27. Where the judgment on appeal turns on an issue of fact, as is the question if a party had a substantial connection with Hong Kong under section 3(c) of the MCO, the Court of Appeal must have regard to the nature of that issue of fact: Ting Kwok Keung v Tam Dick Yuen & Others, supra, per Bokhary PJ at [42]. For the purpose of considering appeals against findings of fact, findings of fact may be categorised as (1) findings of primary fact; (2) findings based on evaluation of facts; and (3) findings based on inferences.

D1.1 Findings of primary fact

28. Where the finding is of primary facts, the occasions where the Court of Appeal interferes would be rare. It has often been said that the Court of Appeal must be satisfied that the trial judge has gone “plainly wrong” in his findings of fact: Ting Kwok Keung, ibid. In Beacon Insurance Company Limited v Maharaj Bookstore Limited, supra, Lord Hodge at [12] explained the plainly wrong test thus:

“This phrase does not address the degree of certainty of the appellate judges that they would have reached a different conclusion on the facts… Rather it directs the appellate court to consider whether it was permissible for the judge at first instance to make the findings of fact which he did in the face of the evidence as a whole. That is a judgment that the appellate court has to make in the knowledge that it has only the printed record of the evidence. The court is required to identify a mistake in the judge’s evaluation of the evidence that is sufficiently material to undermine his conclusions.”

29. Under the “plainly wrong” test, the Court of Appeal must be satisfied that the first instance judge had fallen into palpable error in his findings of primary fact under appeal: China Gold Finance Ltd v CIL Holdings Ltd, supra, per Lam VP at [15] and [16]. Such palpable errors which would warrant the Court’s interference are described by Lord Neuberger in In re B (A Child) (Care Proceedings: Threshold Criteria), supra, at [53] in these terms:

“… such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached…”

30. There are different bases upon which a first instance judge made findings of primary fact as he did. It is well put by Clarke LJ in Assicurazioni Generali SpA v Arab Insurance Group (BSC), supra, thus:

“[14] … In some cases the trial judge will have reached conclusions of primary fact based almost entirely upon the view which he formed of the oral evidence of the witnesses. In most cases, however, the position is more complex. In many such cases the judge will have reached his conclusions of primary fact as a result partly of the view he formed of the oral evidence and partly from an analysis of the documents. In other such cases, the judge will have made findings of primary fact based entirely or almost entirely on the documents. Some findings of primary fact will be the result of direct evidence, whereas others will depend upon inference from direct evidence of such facts.”

31. The different bases upon which the first instance judge made the findings of primary fact give him different advantages over the Court of Appeal in terms of fact-finding. And it is such advantages which determine the appellate approach to reviewing the findings on appeal. As Clarke LJ in Assicurazioni Generali SpA v Arab Insurance Group (BSC), supra, went on to explain:

“[15] In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should interfere. As I see it, that was the approach of the Court of Appeal on a “rehearing” under the Rules of the Supreme Court…”

In a similar vein, Lord Bridge in Whitehouse v Jordan [1981] 1 WLR 246, at pp 269-270 observed:

“[T]he importance of the part played by those advantages in assisting the judge to any particular conclusion of fact varies through a wide spectrum from, at one end, a straight conflict of primary fact between witnesses, where credibility is crucial and the appellate court can hardly ever interfere, to, at the other end, an inference from undisputed primary facts, where the appellate court is in just as good a position as the trial judge to make the decision.”

See also In re B (A Child) (Care Proceedings: Threshold Criteria), per Lord Neuberger, ibid.

32. Recognising that the advantages the trial judge has over the Court of Appeal (and hence the degree of reluctance with which the latter would interfere with his findings) may vary from case to case, generally speaking:

(1) In cases where oral evidence is determinative of the case, the trial judge makes the findings based on assessment of demeanour, credibility and reliability after seeing and hearing the witnesses. The advantages that he has in terms of seeing and hearing the witnesses are not available to the appellate court. That being the case, the Court of Appeal will be extremely slow to disturb the findings, which can be said to be “virtually unassailable”: Benmax v Austin Motor Co Ltd [1955] AC 370; Biogen Inc v Medeva plc [1997] RPC 1, per Lord Hoffmann at p 45; quoted in Assicurazioni Generali SpA v Arab Insurance Group (BSC), supra, at [19]; Beacon Insurance Company Limited v Maharaj Bookstore Limited, supra, at [17]. This applies to cases where only oral evidence is involved or where although both oral and documentary evidence is involved, the oral evidence plays a more significant part in determining the issue.

(2) In cases where the trial judge makes the findings entirely or almost entirely on undisputed documents, no question of credibility of witnesses is involved. The Court of Appeal has the same advantages as the judge did in terms of analysing the documents in its context. In this respect, the Court of Appeal would be in the same position as the judge. However, it does not mean that on an appeal against such findings, the Court of Appeal would embark on a de novo exercise of fact-finding on its own: cf Biogen Inc v Medeva plc [1997] RPC 1, per Lord Hoffmann at p 45; quoted in Assicurazioni Generali SpA v Arab Insurance Group (BSC), supra, at [19]. The appellant still needs to show that the judge’s finding is plainly wrong: cf Pang Ketian Sally v Tam Yuk Hung Annie, CACV 147/2013, supra, per Cheung CJHC at [29] - [30].

D1.2 Findings based on evaluation of facts

33. In Assicurazioni Generali SpA v Arab Insurance Group (BSC), supra, Clarke LJ explained what findings based on evaluation of facts mean and what the corresponding appellate approach to appeals against such findings is, as follows:

“[16] Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.”

D1.3 Inferences

34. Facts are commonly found on inferences. An inference can be made from primary facts or after a process of evaluation: Bessant’s case [2002] EWCA Civ 763, per Walker LJ at [24]. If the former, the Court of Appeal approaches them in the same way as discussed in Part D1.1: Beacon Insurance Company Limited v Maharaj Bookstore Limited, supra, Lord Hodge at [17]; China Gold Finance Ltd v CIL Holdings Ltd, supra, per Lam VP at [22]; DBS Bank (Hong Kong) Limited v Sit Pan Jit, supra, per Poon JA at [111] - [117]. If the latter, the Court of Appeal adopts the same approach as per Part D1.2 above.”

(emphasis added)

12.  The above principles are well settled. In short, it is not the function of the appellate court to re-assess the evidence. “Palpable errors” have to be identified before the appellate court would intervene.

P’s Purported Grounds

13.  Ps’ Purported Grounds of Appeal as attached to his summons are as follows:

“A. He relies on the assessment by MAB under Form 7, which assessed loss of earning capacity at 4% for “neck and back sprain resulting in neck pain and stiffness and back pain and stiffness.

B. Lift and building CCTV footage was main evidence of the accident. Without of this evidence court give judgment.

C. The court also ignore MRI report of 22^nd April 2015. Medical report issued of the MRI in 2019. That indicate that L4, L5 is damage.

D. I request to court please consider all these facts. Because these issued from government hospital. When accident was happened I was only 39 years old. I was too young that time.

E. I was delivered company goods at accident time. And was on my job.

F. I was awaiting for justice After too long time that is court judgment. Please consider all these facts.”

Grounds A, C & D

14.  I agree with Mr Tsui’s observation that these grounds relate to quantum, and it would be logical to deal these grounds together.

15.  P is effectively asking the court to re-evaluate Form 7, the MRI report and the medical notes and reports of the Government Hospitals.

16.  This court has considered the above fully in the Judgment.

17.  Further, they were also examined by Dr Fu in his report, which was also considered by this court.

18.  The court has evaluated all of the above and come to a conclusion which was detailed under §§64-77 of the Judgment.

19.  In any event, P failed to point to “palpable errors” in the Judgment or how the findings were “plainly wrong” in these regards.

20.  I do not see that P has any reasonable prospect of success for Grounds A, C & D.

Ground B

21.  P insisted that D1 and D2 should provide CCTV footage of Daily House and the Lift for the court to consider and without such evidence, the Judgment “would not be complete”.

22.  During the course of Trial, it is clear that the alleged CCTV footage did not or no longer exists. There is no point to ask the court to consider something which was not in existence.

23.  As noted by Mr Tsui, the lack of the CCTV footage of the material time did not prevent P from testifying as to how the Accident occurred. The court did fully consider P’s evidence and did evaluate his evidence against the objective evidence (§§46-51; §§64-90 of the Judgment).

24.  Mr Gidwani submits that CCTV footage and the Accident has no causative connection. The CCTV footage plays no role in the happening or prevention of the Accident.

25.  I agree with the observation by both Counsel. P is merely trying to re-argue the same point in his application for leave to appeal. There is no valid argument put forward by P that the court has erred in assessing the evidence.

26.  P has no reasonable prospects of success for Ground B.

Grounds E & F

27.  For Ground E, P repeated that the Accident occurred while he was in the course of employment with D1.

28.  This is simply another attempt for P to say that D1 should be held liable for his injuries and loss and damages, which was considered and determined by this court. P did not point to any error in the Judgment in this respect.

29.  For Ground F, as noted by Mr Gidwani, Judgment was handed down within 3 months after Trial. P cannot complain that there is any delay.

30.  There is no reasonable prospects of success for Grounds E & F.

Conclusion

31.  P is not able to pinpoint any errors in the Judgment which would satisfy the threshold in challenging factual findings made by this court.

32.  All the Purported Grounds are unmeritorious. I also do not see any other reason in the interests of justice that appeal should be heard.

33.  P’s Summons is therefore dismissed.

34.  I order that P do pay costs of D1 and D2, with certificates for Counsel, to be taxed if not agreed. The costs order shall become absolute unless parties apply to vary in writing within 14 days of handing down.

35.  I am grateful for Counsel’s assistance.

The plaintiff appeared in person

Mr Victor Gidwani and Mr Conan Shek, instructed by John Lam, Law & Co, for the 1^st defendant

Mr Brian Tsui, instructed by CW Chan & Co, for the 2^nd defendant

DCPI 534/2017

[2023] HKDC 715

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 534 OF 2017

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BETWEEN

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DECISION

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Background

1.  Judgment was handed down on 21 March 2023. I shall adopt the same abbreviations and nomenclatures as in the Judgment.

2.  This Court found D2 is wholly liable to P’s injuries and damages and awarded damages in the sum of HK$247,515.00. However, since P has settled the related EC proceedings with D1 and received compensation in the sum of HK$338,000.00, his claim against D2 is dismissed.

3.  This Court found that D2 is liable to contribute and indemnify D1 under ECO and CLCO for the compensation made to P under DCEC 171/2016 together with costs. It is stated under paragraphs 120 & 121 of the Judgment that:-

“120. The sums claimed by D1 (which are not disputed by D2) are as follows:

EC Amount paid to P	$338,000
P’s own costs	$40,000
D1’s costs	$21,760.40
Interest	$106,602.66
Total:	$506,363 (round up)

121. I order that D2 do pay D1 the sum of $506,363 under the Contribution and Indemnity Proceedings.”

4.  D1 and D2 have brought to the attention of this Court that the above paragraphs failed to take into account s 25(1)(b) of ECO that the amount receivable by D1 should not exceed the damages awarded to P and invited this Court to revise the above Order under the “slip rule”.

5.  After exchange of correspondence, the parties, however, are unable to agree upon the exact figure recoverable by D1 from D2. The dispute is over whether costs in the EC proceedings should be subject to the proviso of s 25(1)(b) ECO, that it should be capped (together with EC compensation) by the common law damages.

6.  I have directed parties to file written submissions for the Court’s consideration.

Slip Rule

7.  The principles are well settled. As pointed out by Mr Gidwani for D1, apart from application by the parties under O 20, r 11, RDC, the Court has inherent jurisdiction to vary its own orders so as to carry out its own meaning and to make that meaning plain. The Court, however, has no power to correct its own mistakes: Godfrey JA, Skink Ltd (liquidation) v Comtowell Ltd [1998] 1 HKLRD 524, 543G.

8.  Under paragraphs 120 &121, this Court has indeed omitted to factor-in the damages awarded to P (the detailed analysis was contained in paragraphs 122 to 150 of the Judgment) when making the Order.

9.  This was a clerical error on the part of this Court as D1 was clearly asking for indemnity and contribution from D2 under s 25(1)(b) ECO which states:-

“25. Remedies against both employer and third party

(1) Where the injury in respect of which compensation is payable was caused in circumstances creating a legal liability in some person other than the employer (in this section referred to as the third party) to pay damages to the employee in respect thereof –

(b) the employer by whom compensation is payable, and any person who may be called upon to pay an indemnity under section 24 in the case of an employee employed by a sub-contractor, shall have a right of action against the third party for the recovery of any sum which he is obliged to pay as a result of the accident, whether by way of compensation or indemnity or by virtue of any agreement made with the employee prior to the accident, and may exercise such right either by joining in an action begun by the employee against the third party or by instituting separate proceedings:

Provided that the amount recoverable under this paragraph shall not exceed the amount of damages, if any, which in the opinion of the court would have been awarded to the employee but for the provisions of this Ordinance.” (emphasis added)

10.  The clerical mistake to be corrected is the figure of “EC Amount paid to P” as the Judgment has omitted to take into account the damages in the sum of $247,515.00, which is less than the EC Amount paid to P in the sum of $338,000.00.

11.  There is another clerical error under paragraph 4 of the Judgment when this Court referred to the $338,000.00 settlement sum. The said sum was exclusive of costs (rather than “inclusive” as stated).

12.  This Court considered P’s own costs and D1’s costs as stated in paragraph 120 should be on top of “EC Amount paid to P” in calculating the sum payable by D2 to D1.

13.  In D2’s written submissions now before me, Mr Tsui sought to argue that costs in the EC proceedings should also be subject to the cap of the amount of damages awarded to P.

14.  Mr Gidwani noted that the amount claimed by D1 (ie $506,363) was never disputed by D2. Moreover, Mr Tsui did not make clear calculation and figures of what amount should be payable to D1 by D2 in both his opening and closing submissions.

15.  Indeed no detailed calculation and elaboration was offered by Mr Tsui back then.

16.  Mr Tsui, nonetheless, did in his closing submissions mention that contribution payable by D2 to D1 should be capped at the amount of damages to P under his common law claim, and he referred to Kan Che Sing v Hop On Management Co Ltd[2020] HKDC 292.

17.  As such, Mr Tsui strictly speaking is not attempting to “re-argue” the issue under s 25(1)(b), though it is properly argued now.

18.  This decision deals with the interpretation of the proviso to s 25(1)(b) of ECO.

Section 25(1)(b) ECO

19.  The learned DDJ in Kan Che Sing held that while an employer can seek indemnity and contribution of its legal costs against the tortfeasor, the legal costs (like the compensation in the ECC) should also be capped by the common law damages under the proviso of s 25(1)(b).

20.  However, I have reached a different conclusion that legal costs in ECC should not be included in the equation of calculating the sums to be paid by D2 to D1.

21.  My reasons are as follows.

22.  It is not disputed that “any sum” under s 25(1)(b) is not limited to compensation under ECC but also costs which an employer is obliged to pay as a result of the accident: Wong Man Yip v Wah Kwong Construction Material [1995] 1 HKLR 85, per Mortimer JA.

23.  The same is adopted by the Court of Appeal in Yardway Motors Limited v Tam Siu Lun [2005] 2 HKLRD 118.

24.  The Court of Appeal, however, did not expressly state whether legal costs should be included in the calculation for the purpose of s 25(1)(b).

25.  Upon reading s 25(1)(b) on its own, and in particular its proviso, it would seem that legal costs should also be subject to the cap of common law damages, as argued by Mr Tsui.

26.  However, one must read s 25(1)(b) together with the other relevant sections, in particular s 25(1)(a), of ECO:-

“25. Remedies against both employer and third party

(1) Where the injury in respect of which compensation is payable was caused in circumstances creating a legal liability in some person other than the employer (in this section referred to as the third party) to pay damages to the employee in respect thereof –

(a) the employee may both claim compensation under this Ordinance and take proceedings against the third party in the Court of First Instance or, subject to the provisions of the District Court Ordinance (Cap. 336) relating to the limits of jurisdiction, in the District Court to recover damages:

Provided that where any such proceedings are instituted the court in which the action is tried shall, in awarding damages, have regard to the amount which, by virtue of paragraph (b), has become or is likely to become payable to the employer by the third party;” (emphasis added)

27.  When assessing common law damages, I agree with Mr Gidwani’s interpretation of s 25(1)(a) that costs in EC proceedings are not included in deducting P’s common law damages.

28.  Indeed, it has always been the practice of the Court in assessing damages in common law. Unlike compensation under ECO, costs in EC proceedings were never taken into account by the Court in the process.

29.  It could not be the legislative intent to give different treatments to legal costs in EC proceedings under the same section, ie excluding legal costs in the calculation of common law damages to P under s 25(1)(a) while including legal costs in the calculation of what an employer can recover from a tortfeasor under s 25(1)(b).

30.  The purpose of s 25(1)(a) is to avoid an employee getting more than the damages he could get under the common law while s 25(1)(b) is to ensure that the employer get to recover what he was obliged to pay under ECO from the tortfeasor.

31.  It would not be logical for legal costs of EC to be calculated when considering the amount an employer can seek from the tortfeasor but not calculated when assessing common law damages payable to an injured employee. It is the other side of the same coin.

32.  Further, if one takes a closer look at Yuen JA’s judgment in Yardway Motors, it is clear that legal costs should not be part of the computation under s 25(1)(b):-

“48. In my view, those words are by themselves ambiguous, but when one reads the rest of the section (and other parts of the ECO), one is driven to the conclusion that this section does not apply to a situation where both employer and third party were liable in common law to the employee. In other words, the ECO provisions cater only for the simple situation where the employer was not to blame for the injury, and his only liability to the employee was the statutory duty (under the ECO) to pay compensation. He can then stand in the shoes of the employee and recover what the employee can recover from the third party.

51. The employer’s right to recover whatever sum he has paid is subject only to the proviso to s.25(1)(b), which limits the amount he can recover to the quantum of damages which would have been awarded to the employee but for the terms of the ECO. This proviso, together with the proviso to s.25(1)(a), ensures that the employee does not recover - and the third party does not have to pay - anything more than the damages to which the employee would be entitled in common law. ….” (emphasis added)

33.  Unlike compensation, liability to pay legal costs (be it employee’s own costs or employer’s costs in defending the claim) is not a statutory duty under the ECO. Costs is not granted under the terms of the ECO. It is always a matter of discretion of the Court.

34.  Under s 25(1)(b), the employer who stands in the shoes of the employee can claim, on top of the EC compensation, legal costs against the tortfeasor. As under s 25(1)(a), legal costs is not meant to be part of the calculation.

35.  I therefore disagree with Mr Tsui’s interpretation.

The Amount Payable by D2 to D1

36.  In calculating the amount payable by D2 to D1, it is common ground that interest on the common law damages should be included.

37.  P would have been entitled to interest on PSLA at 2% pa from date of writ to date of Judgment, and interest on Pre-Trial Loss of Earnings at half judgment rate (4%) from date of Accident to Date of Judgment.

38.  As pointed out by Mr Tsui, D2 has made Sanctioned Payment to P which he obviously failed to accept by 7 April 2021.

39.  As such, interest payable on P’s common law damages should be:-

PSLA:

$127,500 at 2% pa from 9 March 2017 to 7 April 2021

= $10,409.60

Pre-trial loss of earnings:

$120,015 at 4% pa from 10 March 2014 to 7 April 2021

= $33,985.60

40.  The amount compensation under EC, as capped by s 25(1)(b) ECO, which D1 is entitled to recover from D2 would then be:-

$247,515.00 + $10,409.60 + $33,985.60 = $291,910.20

41.  D1 is therefore entitled to indemnity and contribution from D2 in the following:-

EC Amount paid (as capped)	$291,910.20
P’s own costs in ECC	$40,000.00
D1’s costs in ECC	$21,760.40
	__________
Total:	$353,670.60

42.  D1 is also entitled to interest on the sum of $353,670.60 at 4% pa from date of settlement of EC (4 October 2016) to date of Judgment (21 March 2023) ie 77 months:-

$353,670.60 x 77/12 x 4% = $90,775.50

43.  The sum payable by D2 to D1 is thus:-

EC Amount paid (as capped)	$291,910.20
P’s own costs in ECC	$40,000.00
D1’s costs in ECC	$21,760.40
	__________
Sub-total:	$353,670.60
Interest on $353,670.60	$90,775.50
	__________
Total:	$444,446.00 (round up)

44.  Paragraph 120 of the Judgment is thus amended as follows:-

“The sums claimed by D1 (which are not disputed by D2) are as follows:

EC Amount paid to P	$338,000
P’s own costs	$40,000
D1’s costs	$21,760.40
Interest	$106,602.66
Total:	$506,363 (round up)

D1 could only recover the EC Amount paid to P up to the amount of damages awarded to P (in the sum of $247,515 which is detailed under Quantum) and interest thereon. D1 is therefore entitled to the following:

Damages (with interest on top)	$291,910.20
P’s own costs in ECC	$40,000
D1’s costs in ECC	$21,760.40
Interest	$90,775.5
Total:	$444,446 (round up)”

45.  Paragraph 121 of the Judgment is amended as follows:-

“I order that D2 do pay D1 the sum of $506,363 $444,446 under the Contribution and Indemnity Proceedings.”

46.  Mr Gidwani in his submissions asks for costs against D1 with certificate for Counsel associated with this revision.

47.  As the present revision is part and parcel of the Contribution and Indemnity Proceedings, no further costs order will be made as it has been dealt with under paragraph 156 of the Judgment.

48.  As a result of this Decision, there would be corrigendum of the Judgment to paragraphs 4, 120 and 121.

49.  I am grateful for Counsel’s assistance.

Mr Victor Gidwani and Mr Conan Shek, instructed by John Lam, Law & Co, for the 1^st defendant

Mr Brian Tsui, instructed by CW Chan & Co, for the 2^nd defendant

DCPI 534/2017

[2023] HKDC 347

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 534 OF 2017

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BETWEEN

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JUDGMENT

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1.  At all material times, the plaintiff (“P”) was employed by the 1^st defendant (“D1”) as a delivery worker. His job duties were to deliver goods from the D1’s warehouse in Hankow Road Tsim Sha Tsui to D1’s various shops, one of which was situated at 3/F Daily House, 35-37 Haiphong Road, Tsim Sha Tsui (“Daily House”).

2.  The 2^nd defendant (“D2”) was and is the incorporated owners of Daily House.

3.  P’s case, in a nutshell, is that on 10 March 2014, while in the course of employment with D1, he took lift number L2 (“the Lift”) on 3/F of Daily House with a view to travel to 1/F, the Lift fell rapidly from 3/F to 1/F and shot back between 1/F and 2/F. P was trapped until released by the Fire Services. P suffered neck and back injury as a result (“the Accident”).

4.  P sued D1 for employees’ compensation under DCEC 171/2016. The proceedings was settled as D1 paid a sum of HK$338,000 (inclusive of costs) to P.

5.  P was previously represented by Messrs Massie & Clements (“MMC”) in the present proceedings. MCC has filed with the court, among other things, Amended Statement of Claim dated 11 September 2018 (“ASOC”), Statement of Damages dated 15 February 2018 and P’s witness statement dated 12 December 2018.

6.  Under the ASOC, it is pleaded that:

“(8) The lift was a lift as defined by s.2 of the Lifts and Escalators Ordinance, Cap. 618, Laws of Hong Kong and the 1^st and or 2^nd Defendants were the responsible person in relation to the said lift as defined by s.2.

(9) The 1^st Defendant and/or the 2^nd Defendant were the occupiers of the said Daily House.

…

(11) The 1^st and/or the 2^nd Defendant were aware or ought to have known that the said lift was a danger to those using it including the Plaintiff.”

7.  It is said that P’s injuries and damages were caused by the breach of statutory duty under the Lifts and Escalators Ordinance, Cap 618 (“LEO”) and Occupiers Liability Ordinance, Cap 314 (“OLO”) on the part of D1 and/or D2, as well as negligence on the part of D1 and/or D2.

8.  P did not plead his case against D1 and D2 separately in the ASOC, except for particulars of negligence:

“a. The 1^st Defendant as employer owed to the Plaintiff a duty of care to the Plaintiff to provide safe access and egress to his place of work.

b. The 2^nd Defendant as the incorporated owners owed a duty of care to the Plaintiff to take reasonable care to see the Plaintiff would be reasonably safe in using the premises.

c. The 1^st and/or 2^nd Defendant caused or permitted the said lift to be or become or to remain a danger and a trap to the persons lawfully using the same including the Plaintiff.

d. … both the 1^st and/or 2^nd Defendant were aware that the said lift frequently malfunctioned causing a danger to its users.”

9.  Under paragraph 5 of its Amended Defence, D1 admits that P met with an accident at work and suffered injuries but makes no admission to P’s allegations on how the Accident had occurred and whether his injuries were caused by the Accident.

10.  D1’s Defence is straight forward, that being a tenant of Daily House, D1 has no power to possess, maintain and control of the Lift. D1 is thus neither an occupier nor the “responsible person” under LEO. D1 also denied that it was negligent, that there was no foreseeable risk of personal injury to P associated with his work.

11.  By Contribution Notice dated 10 June 2020 and the Statement of Claim in the Contribution and Indemnity Proceedings dated 10 December 2020, D1 seeks contribution and/or indemnity against the D2 for (1) any damages payable in the present action; and (2) the EC Amount paid by D1, relying on section 25(1)(b) of the Employees’ Compensation Ordinance (Cap 282) (“ECO”) or alternatively s3 of Civil Liability (Contribution) Ordinance (Cap 377) (“CLCO”).

12.  D1 avers in the Contribution and Indemnity Proceedings that the Accident was wholly caused or alternatively contributed by the negligence and/or breach of statutory and/or common duty of care on the part for D2:

“Particulars of Breach of Statutory Duties of the 2^nd Defendant as the “Responsible Person” of the Lift concerned under Cap. 618:

(a) Failing to ensure that the lift and all its associated equipment or machinery are kept in a proper state of repair and in safe working order, contrary to section 12(1) of Cap. 618.

Particulars of Negligence of the 2^nd Defendant:

(b) Failing to carry out corrective measures to the Lift as recommended by AEEL.

(c) Causing or permitting garbage to remain in the landing door sill of the Lift.

(d) Failing to maintain any or any reasonable supervision on its agent and/or employees that they had duly carried out their duties to keep the common areas of the building and the Lift reasonably clean and in good repair and condition.

(e) Causing or permitting the lift concerned to be or become or to remain a danger and a trap to the persons lawfully using the same including the Plaintiff.

(f) Exposing the Plaintiff to risk of damage or injury of which the 2^nd Defendant knew or ought to have known.”

13.  D2 did not blame D1 for P’s Accident and basically puts P to strict proof of his case. D2 denies that the Lift fell rapidly.

14.  It is D2’s case that D2 had delegated the role of management of Daily House to Homechant Limited (“Homechant”), who is obliged to keep the common areas of Daily House reasonably clean and in good condition.

15.  D2 had also contracted the maintenance and repair work of the lifts in Daily House to AEEL, a registered lift and escalator contractor. The supervisory role on AEEL was delegated to Homechant.

16.  Under paragraph 5 of its Amended Defence, D2 pleaded that:

“(d) Even if (which is not admitted) there were several breakdown of the lifts and/or incidents of trapping in the lifts of the Building, the 2^nd Defendant had no knowledge of the same as no incident reports were prepared and/or kept by Homechant.

(e) … Homechant had an effective and sufficient control of the lifts of the Building.

…

(g) … even if (which is not admitted) the alleged breakdown of the lifts and/or incidents of trapping in the lifts of the Building did take place in the past, it is averred that none of the alleged incidents involved any person being injured, feeling unwell and/or claiming for damages, as shown in the “Log Book for Lifts or Escalators” kept by AEEL.

(h) … the 2^nd Defendant was… unaware of the alleged accident until a letter from Messrs. Massie & Clement, the solicitors for the Plaintiff dated 27 June 2017 was received by the 2^nd Defendant.”

17.  In paragraph 7, it is said that:

“(c) Even if there was an accident of the Plaintiff trapped in the Lift on or about 10 March 2014, it is denied that the Lift rapidly fell from 3/F to G/F of the Building and/or shot up between G/F and 1/F of the Building as alleged by the Plaintiff based on the reason that nothing is suggested in the “Full Investigation Report for Lift/Escalator Incident” dated 17 March 2014 submitted by AEEL to EMSD that the Lift was involved in any kind of rapid fall and/or ascent after the Plaintiff entered into the Lift and the Lift door shut…

…

(g) AEEL has all along conducted bi-weekly maintenance inspection of the lifts of the Building…

…

(i) … Homechant… failed to supervise the maintenance works of the said lifts by the AEEL, review the condition of the lifts under their management and to take reasonable steps to ensure the lifts of the Building functioned properly including to solve any problem of the said lifts with the assistance from AEEL.

(j) It was the finding of AEEL that there was garbage found on the 1/F landing door sill which affected the smoothness of the lift door operation and caused the mechanical inter-linkage between the lift car door and landing door to be jammed; resulted in the lift door remained shut. Nothing was mentioned by AEEL as to the alleged rapid fall and/or ascent of the Lift put forth by the Plaintiff.

…

(l) … there was also nothing suggested by the Fire Services Department in its Incident Report on the alleged rapid fall and/or ascent of the Lift, instead it merely mentioned the trapping of a male adult in the lift at the material times.”

18.  D2 claimed that it was only one of the occupiers, and that it had delegated the role of management of Daily House to Homechant and the Lift to AEEL respectively.

19.  It is averred that D2 had taken all reasonable steps to ensure that the lifts of Daily House are kept in a proper state of repair and in safe working order by engaging a competent contractor, AEEL: para 10(a)(iii).

20.  It should be noted that D2, both in its Amended Defence and its Defence in the Contribution Proceedings, pleaded that an emergency braking system had been installed in the Lift at the material time. However, no evidence has been adduced by D2 in this regard.

21.  Lastly, D2 pleads contributory negligence on the part of P, for, inter alia, failing to keep proper balance.

Liability

P’s various heads of claims

22.  As said, the basis of P’s case against D1 and D2 is the same, ie breach of statutory duty under LEO and OLO, breach of occupier’s liability, as well as negligence.

23.  Section 2 of LEO reads as follows:

“responsible person (負責人) means—

(a) in relation to a lift—

(i) a person who owns the lift; or

(ii) any other person who has the management or control of the lift;”

24.  D2, as IO of Daily House, no doubt falls with the definition of “responsible person” under s2 of LEO.

25.  D2 admitted to be one of the occupiers under its Amended Defence.

26.  Even though D2 has entrusted the management of the Daily House (and the Lift) to Homechant (and AEEL), it does not mean that D2 ceased to be an occupier.

27.  Evidence shows that AEEL maintained a logbook regarding the lifts installed at Daily House and it is D2’s own case that there were regular meetings between D2 and Homechant.

28.  I am satisfied that D2 at all material times maintained sufficient control over the common area, including the Lift, to qualify as an occupier.

29.  As a tenant of Daily House, D1 had no control of the Lift nor had anything to do with the maintenance and repair of the Lift.

30.  I find that D1 is neither an occupier nor a “responsible person” under LEO.

31.  As pointed out by Mr Gidwani for D1, the only viable cause of action open to P against D1 is common law negligence, ie whether D1 had provided a safe means of access and egress to his place of work.

32.  In ASOC, P did not specify how D1 caused the means of access and egress of P unsafe. P did not plead what act or omission of D1 that “caused or permitted the Lift to be or become or to remain a danger and a trap” to a lawful visitor like P, except that “D1 was aware that the Lift frequently malfunctioned causing a danger to its users”.

33.  Under ASOC and P’s evidence, during the time he worked for D1, he never had any accident when travelling the lifts of Daily House. He confirmed that he had never complained to D1 about malfunctioning of the Lift as there was nothing for him to report or complain about.

34.  According to P, prior to his employment with D1, the lifts frequently malfunctioned when he worked for cosmetics chain SaSa as a retail store security guard. There is no evidence to show that D1 was aware of the malfunctioning of the Lift while P was working for SaSa.

35.  There is no evidence to show that D1 knew or ought to have known the risk regarding P’s use of the Lift while P was in D1’s employment. The risk of P’s injury could not have been foreseeable to D1.

36.  In the premises, I find that D1 could not have been liable to P for the Accident. P’s claim against D1 must fail.

How the Accident occurred

Evidence of the Witnesses

37.  There are four witnesses at Trial: P himself, Chau Chung Yin, manager of D1 (“Chau”); Charles Chan, Chairman of D2 (“Charles”); and Pauline Chan, Vice-Chairlady of D2 (“Pauline”).

38.  Chau’s evidence is largely uncontroversial. He has adopted the witness statements of Lam Chi Keung, D1’s original witness.

39.  In addition, it is Chau’s evidence that after P was rescued by the firemen, P told him that P was trapped in the Lift. P also said that the Lift suddenly fell and there was pain in his waist. Chau accompanied P to the hospital.

40.  Charles was not chairman of the IO at the time of the Accident. He did not speak with his predecessor nor did he have personal knowledge of the state of affairs as at March 2014.

41.  His evidence mainly came from what he could deduce from the documents available to him after he became chairman. He only knew of P’s Accident after D2 was served MMC’s letter in June 2017.

42.  Pauline was the Vice Chairlady of D2 since 2012.

43.  Pauline’s evidence focused on the selection process of Homechant (by way of tender), delegation of responsibility to Homechant as well as D2’s supervision and monitoring of Homechant, via logbook prepared by AEEL and/or report from security guards.

44.  She maintained that Homechant has put in the logbook about P’s trapping in the Lift. She was not personally informed by any security guard of P’s Accident at the time. She only knew about it when MMC sent the letter to D2 in June 2017.

45.  P is the only person who could give evidence as to how the Accident occurred.

P’s Evidence

46.  P confirmed his witness statement as his evidence in chief, except the parts under “Medical and Other Expenses”. P said he did not incur those expenses and had no idea why those paragraphs were inserted, despite that the witness statement was interpreted to him by a Mr Singh of MMC in Punjabi.

47.  Accordingly, P did not claim any Special Damages under the (Revised) Statement of Damages he filed on 15 July 2020.

48.  P confirmed in his witness statement that he could speak Punjabi, Urdu, Cantonese and some English. P’s choice of language in court was Urdu. P indicated that he was conversant in both Punjabi and Urdu though neither was his native tongue. During the course of trial, it is clear that P can manage conversational Cantonese. At times, he was able to cross examine Charles and Pauline in Cantonese, bypassing both the Urdu interpreter and the Cantonese interpreter.

49.  Both Mr Gidwani and Mr Tsui cross-examined P extensively as to how the Accident occurred.

50.  P’s description of the Accident can be summarized as follows:

(a) The Lift fell from 3/F to 1/F at a higher speed than normal;

(b) He felt the centre of gravity went up when the Lift fell;

(c) The Lift “hit the bottom” and bounced back on the springs underneath the Lift and then it got stuck;

(d) He felt dizzy and was in shock;

(e) Because of the jerk of the Lift, his whole body was shaken; and such jerk injured his back and neck;

(f) His back hit the walls/sides of the Lift;

(g) He did not fall to ground and landed on his feet;

(h) He was holding a trolley in his hand during the fall and he still hang on to it after the fall;

(i) He sat on the floor afterwards until he was rescued by the firemen, at which point he came to know the Lift was stuck between 1/F and 2/F.

51.  P repeatedly said that he felt his life was at risk at the time and that he felt very painful after the Accident.

Documentary Evidence

52.  Mr Tsui relied heavily on LE27 and LE29, which were filed by Homechant and AEEL respectively with EMSD. Such documents do not support P’s allegation of “sudden fall and bouncing back”, as the documents only recorded “a person was trapped inside the Lift and the Lift door did not open”.

53.  However, D2 did not call anyone from Homechant or AEEL to explain the content of these documents.

54.  Mr Gidwani has helpfully highlighted the following:

Document	Date	Description of the Accident
Form LE27 filled in by Homechant	11 March 2014	“When the lift reached 1/F, door did not open with (a) person trapped.”
Form LE29 filled in by AEEL	17 March 2014	“(5) Brief Description of the Incident and Damage Incurred… … a man travelled from upper floor downward, when the lift arrived at 1/F, the lift door was unable to open and the man was trapped…”
Lift Malfunction Records	For entry on 10/3/14	“困人… 消防放人，暫停，明天跟進”
Hong Kong Fire Services Incident Report	17 October 2017	“opened the landing door… opened the lift car door… rendered ambulance aid to a male adult who felt unwell…”
Form 2 filled in by D1	17 March 2014	“Employee was trapped in a lift after goods delivery, there was a minor fall of the car of elevator”
AEEL Log Book	Various	“到達消防已放人. 有一乘客不適召救護車. 現暫停再作檢查” “11/3/2014 檢查後，所有安全迴路 內外門閘鎖平層面一切正常…”

55.  In paragraph (9) of LE 29, it is stated by AEEL that:

“After full checking by our maintenance mechanic, there was garbage found on 1/F landing door sill. As the car door and landing door system were installed for more than 40 years, wear and tear found on most of the mechanical components, minor garbage would affect the smoothen of the door operation and the mechanical inter-linkage between the car door and the landing door then jammed and the lift door remained in close situation.”

56.  Paragraph 10 of LE 29 states:

“To prevent the same incident happened in future, we recommend to conduct major alterations by replacing the existing car door system and landing door system with a new system. The relevant recommendation had been prepared and relevant quotation had been sent to property management company on 2013-4-3 with our letter ref. AEE/041110/QT/WHL.”

57.  The Lift Malfunction Record (prepared by AEEL), covering the period from March 2014 to February 2019, which was produced by Charles in his witness statement, contains the following:

(a) March 2014 : 6 incidents (including 2 “person trapping” incidents re Lift L2 and 1 “door unable to open” incident re L2);

(b) April 2014 : 5 incidents (including 2 “person trapping” incidents re L2);

(c) May 2014 : 3 incidents (including 1 “person trapping” incident re L2 and 2 “door unable to open” incidents re L2);

(d) June 2014 : 5 incidents;

(e) August 2014 : 1 incident;

(f) September 2014 : 3 incidents (including 1 “person trapping” incident re L2);

(g) October 2014 : 4 incidents;

(h) November 2014 : 5 incidents (including 1 “person trapping” incident re L2);

(i) December 2014 : 6 incidents;

(j) January 2015 : 6 incidents (including 1 “person trapping” incident re L2);

(k) February 2015 : 1 incident;

(l) March 2015 : 7 incidents (including 2 “person trapping” incidents re L2); and

(m) April 2015 : 1 incident.

58.  Apparently, there was no more malfunction incidents after April 2015 up to February 2019.

59.  As noted by Mr Gidwani, the Malfunction Record as exhibited by Charles starts at p6. It would seem there should have been p1 to p5 and that D2 did not disclose malfunctioning incidents, if any, preceding the Accident on 14 March 2014.

60.  In this respect, Charles said that he did not know if there were in fact pages 1 to 5. He could not tell whether there were any malfunctioning incidents prior to March 2014.

61.  He was cross-examined by Mr Gidwani on the 31 August 2009 management committee minutes, which shows that there were discussions on interior renovation and replacement of car doors for the 2 lifts in Daily House.

62.  He confirms that as early as 2009, AEEL suggested “main machines to be replaced so that the lifts could be more stable”.

63.  However, it was not done at the time. The lifts were replaced when Daily House underwent a major renovation for the entire building in 2015/2016.

Medical Evidence

64.  P himself did not file any expert report for his injuries but relied on the reports from his treating doctors at the government hospitals.

65.  He relies on the assessment by MAB under Form 7, which assessed loss of earning capacity at 4% for “neck and back sprain resulting in neck pain and stiffness and back pain and stiffness”.

66.  He disagreed with the findings of Dr Fu Wai Kee, orthopaedic expert engaged by D2.

67.  Dr Fu examined P and prepared a report dated 28 November 2019.

68.  Pursuant to an Order dated 19 July 2021, P has agreed by consent that Dr Fu’s report would be admitted as evidence without calling Dr Fu.

69.  However, P repeatedly said during the course of trial that he wanted Dr Fu to come to court. Further, P insisted that he never told Dr Fu anything despite what Dr Fu has written in his report, as all the information was provided by D1 to Dr Fu.

70.  I do not accept what P said. Had he really wanted to cross examine Dr Fu on his report, he must have informed the court on 19 July 2021. At the very least, he would have applied to vary the Order before trial if he was minded to do so.

71.  Further, it is absurd to say that Dr Fu got all the information from D1 in order to prepare his report. P attended examination by Dr Fu in the company of an interpreter Mr Sajid Khalil. Also, as I have noticed, P is clearly able to communicate in Cantonese (as he himself said so in his witness statement). There is no reason for Dr Fu to conduct the examination without any input nor information from P himself.

72.  It is also apparent from the report that Dr Fu has conducted examination on P and reviewed all the medical notes and reports from P’s treating doctors.

73.  Also, Dr Fu is engaged by D2. I do not see why Dr Fu would take instruction or information from D1 directly.

74.  Dr Fu is an experienced orthopaedic expert, whose expertise is unchallenged. Dr Fu’s opinion has been referred to in court many times before and he has signed the Declaration at the end of the report. I am convinced that Dr Fu have conducted the examination by reviewing the full medical history and taking information from P, and that he had reached his professional opinion on those basis.

75.  I have no reason not to accept Dr Fu’s opinion in full.

76.  Dr Fu’s findings can be summarized as follows:

(a) The plaintiff said that on 10 March 2014, when he entered the lift, the lift rapidly fell from 3/F to G/F and then shot up between the G/F and 1/F. He fell onto the floor and landed on his back. As a result of the accident, he suffered from neck and back injury.

(b) According to the medical report of Dr Chan Kin Ling, the plaintiff attended the A&E Department of QEH on 10 March 2014. He complained of neck and back sprain injury when the lift suddenly descended from 2/F to 1/F. He complained of neck and back pain.

(c) From the description of the plaintiff, his clinical picture is compatible with the diagnosis of soft tissue injury of neck and back. These should be the result of the alleged incident happened on 10 March 2014 if the described accident really has happened as described.

(d) On the other hand, according to description of the plaintiff the injury he sustained should not be serious. He just fell inside a lift that was moving and landed on multiple sites. He said the lift fell from 3/F to ground floor while according to A&E notes it fell from 2/F to first floor. The energy of trauma should not be high and the force to each site should be a low one. There was no sign of significant trauma such as bruise and swelling. There was just reported tenderness over the injured areas. The absence of bruise and swelling indicates that the injury he sustained, even if present, should be of mild degree.

(e) For the neck and back injury, from the medical notes during the multiple consultations in first few months after the injury it was repeatedly documented he had no limb symptoms. There was just mild tenderness in neck and back. There was no genuine neurological deficit. He could walk unaided. All these indicates that he just had very mild symptoms during the first few months after the accident.

(f) However he gradually complained of left lower limb symptoms He said it only appeared in 2016. From the time of presentation his limb symptoms cannot be caused by the alleged accident.

(g) X ray and MRI revealed mainly degenerative changes in his neck and back. These must be pre-existing that cannot be caused by one single trauma. However judging from the severity of the degenerative changes most likely he should have some pre-existing neck and back pain. His present complaints should be due to natural progression of his pre-existing degeneration.

(h) In consideration of the 3 possible scenarios of pre-existing condition, P falls under scenario 2, that there is a strong possibility that some other event, or natural progression of the condition, would have brought about the plaintiff’s present state. Dr Fu’s estimate is that the alleged accident should be considered as having advanced his neck and back pain by an estimated duration of 3 years.

(i) The plaintiff said the pain did not improve with treatment and was actually getting worse. His complaints are not compatible with the natural course of injury and should not be genuine. If he had deterioration of symptoms with treatment the clinical condition is more compatible with degeneration.

(j) Upon examination, there was no abnormality in his neck and back except reported tenderness and minimal active movement. There was no loss of lordosis and no paraspinal muscle spasm. The absence of these objective signs showed that the pain should be of a minor degree. He should have well recovered from the injury long time ago.

(k) Physical examination revealed there was no associated muscle wasting or signs of myelopathy. He was positive in all the non-organic signs. There should be high non-organic component in his complaints.

(l) The plaintiff has received appropriate treatment. He has reached maximal medical improvement long time ago and no further treatment should be required.

(m) He should be able to return to his original work.

(n) This kind of minor injury patients should not need more than six months of sick leave and rehabilitation.

(o) For the possible mild residual pain in his neck and back, the impairment of whole person should be 2%. The loss of earning capacity should also be 2%.

77.  In short, Dr Fu’s view is that P suffered a soft tissue injury to the back and neck which should be well recovered long ago. P’s complaint is considered not genuine and his clinical condition is more compatible with pre-existing degeneration, although Dr Fu did not specify what percentage P’s condition is caused by such pre-existing degeneration.

Discussion

How the Accident Occurred

78.  The principles for assessing credibility of witnesses were well settled, as recently summarized by Recorder Yvonne Cheng (as she then was) in The Joint and Several Trustee of the Property of Yeung Wing Sing v Yeung Wing Sing[2021] HKCFI 2018, which I shall not repeat.

79.  P’s evidence is that the Lift suddenly fell to the bottom and bounced back up.

80.  P referred to various reports from his treating doctors which recorded what he described to the doctors. This cannot be treated as evidence in support of P’s version.

81.  On the other hand, P’s version of events is not supported by the documents referred to under Documentary Evidence above.

82.  I agree with Mr Tsui that if the Accident did occur as P said, one would expect that there to be some structural damage to the Lift.

83.  If so, it would have been recorded in the documents cited above, at least in the Fire Services Incident Report.

84.  Further, it is clear from Dr Fu’s report that his injuries are minor and the energy of trauma should not be high. It is consistent with the findings of the medical reports and notes of P’s treating doctors.

85.  I do not find P to be a credible witness. He grossly exaggerated the magnitude of the Accident and the extent of his injuries. I do not accept his evidence.

86.  Mr Gidwani invites this court to find as a fact that on 10 March 2014, P experienced a sudden descent of the Lift which stopped with a slight jerk causing him slight soft tissue injuries with insignificant residual disabilities. The perception of a slight jerk, according to Mr Gidwani, could be a result of the Lift coming to a halt.

87.  In the absence of any expert evidence on the mechanism of the Accident, Mr Gidwani’s observation is entirely logical.

88.  As the Lift descended and came to a sudden halt, one would expect there to be an upward motion, which would well be interpreted as a jerk. This is just common sense. I am prepared to accept that the emergency braking system pleaded by D2 was in place, otherwise the Lift would have fallen to the bottom of the shaft which would have been catastrophic.

89.  Considering all the evidence before me, I find that it is more probable than not that when the Lift descended from 3/F, it came to a sudden halt.

90.  I further find that such sudden halt did create, in P’s word, a jerk, and such jerk did cause soft tissue injuries to his neck and back as suggested by Dr Fu. And, as the door could not be opened, P was trapped inside until he was rescued by the firemen.

Conclusion on Liability

91.  In the premise, P failed to prove that the Lift “rapidly fell from 3/F to 1/F and then shot up between 1/F and 2/F as pleaded.

92.  However, it does not necessarily mean the P’s case must fail against D2.

93.  In Poon Hau Kei v Hsin Chong Construction Co Ltd [2004] 2 HLRD 442, the question for the CFA is whether the trial judge was correct in proceeding and finding liability against the 1^st defendant on the basis of a version of facts which was different to that advanced by the plaintiff or whether he should in the circumstances have dismissed the claim.

94.  The CFA upheld the decision of the trial judge who found the 1^st defendant liable to the plaintiff on a scenario pleaded by the 1^st defendant. Bokhary PJ held:

“19. Provided that it does so in a fair manner, a court is entitled to decide in favour of a party on the basis of a scenario that he has not pleaded but his opponent has pleaded. …… “I fail to see how [the defenders] can have been in any way prejudiced when the facts upon which liability was established are those averred in the defences and spoken to by their witnesses in evidence”.

20. …… I am of the view that the pleadings accommodate the trial judge’s findings as to how the damage was caused and how the responsibility for it is spread. And it is to be noted that both sides proceeded at the trial on the basis that each of them could be held partly responsible for the damage on the light trough scenario.

…

24. …… the trial judge said that the light trough scenario had been fully canvassed in evidence and submissions by the parties [and that there was] no prejudice to anyone.” (emphasis added)

95.  As D2 pleaded in its Amended Defence, I have found that P was trapped inside the Lift, which stopped as it was descending from 3/F. This was fully canvassed in evidence and submissions by the parties and there was no prejudice to anyone, especially D2.

96.  As to what caused the Lift to stop while descending, Mr Tsui argued that the court should not expect D2 to be able to discover potential defects in the Lift, unless it was told by Homechant and AEEL.

97.  Mr Tsui further argued that an occupier does not need to guarantee the safety of its visitors. An occupier is not liable if it has in place a reasonable system to protect visitors against the type of damage it can reasonably foresee to happen on the visitors: Yau Tsz Hin v Broadway Theatre Co Ltd, HCPI 674/2010.

98.  On the other hand, Mr Gidwani argued that the fact that D2 had engaged Homechant to assist D2 in its management of the Daily House and AEEL for periodic inspection or maintenance of the Lift does not extinguish D2’s personal duty of care towards P.

99.  Mr Gidwani further agrued that it is not necessary for P (in the main action) or D1 (in the contribution proceedings) to prove that D2 should reasonably foresee the precise manner that the accident had happened in order for a duty of care to arise. D2 would be held liable if the evidence shows that D2 had failed to take such reasonable steps and that P was injured (in the general sense) as a result of the failure.

100.  From LE29 and as pleaded by D2 under paragraph 7(j) of D2’s Amended Defence, garbage was found on 1/F door sill which affected the smoothness of the lift door operation and caused the mechanical inter-linkage between the lift car door and landing door to be jammed, resulting in the lift door remained shut.

101.  Paragraph 7(k) of the Amended Defence went on to state that Homechant had failed to keep the common areas clean which resulted in the Accident.

102.  It is clear that it is D2’s own case:

(a) The presence of garbage is a cause of P’s Accident; and

(b) This is due to the fault of Homechant.

103.  However, D2 did not issue any Third Party Proceedings against Homechant.

104.  Mr Gidwani refers to the full provisions of s3(4)(b) of OLO which reads:

“where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.” (emphasis added)

105.  The evidence of Charles and Pauline is that the cleaning of Daily House was sub-contracted out to cleaners who were contracted by Homechant on D2’s behalf. There was a cleaning schedule adopted.

106.  But such evidence is unable to show what steps the IO has taken in order to satisfy itself that Homechant was competent and that the work (in relation to cleaning) had been properly done.

107.  Also, Charles was not the chairman at the material times and was not able to give any useful evidence regarding the state of management of Daily House and how Homechant performed.

108.  It is D2’s evidence, as contained in LE29, that the Lift was 40 years old and wear and tear were found on most of the mechanical components.

109.  More importantly, D2 was aware of the following:

(a) The need to replace the car door of the Lift was discussed back in August 2009 management committee meeting (see: 31 August 2009 minutes of meeting); and

(b) AEEL’s proposal to replace the relevant system on 3 April 2013 (see: para 10, LE29).

110.  I agree with Mr Gidwani that had the renovations in 2009 been implemented, AEEL would not have reported in the LE29 that wear and tear were found on most of the mechanical parts of the Lift.

111.  Replacement of the lifts was only carried out in 2015 or 2016 when the whole building of Daily House was renovated. It also explains why there was no more malfunction incident after April 2015.

112.  The fact that D2 was notified by P’s Accident by MMC at a late stage is neither here nor there. Proper maintenance of the Lift and cleanliness of the common area is an ongoing duty for the responsible person and the occupier.

113.  I find it is more probable than not that the Accident occurred as a result of malfunction of the Lift, and such malfunction was caused by:

(a) The presence of garbage on 1/F door sill; and

(b) The poor state of the Lift as at 10 March 2014 due to failure to maintain and repair the Lift despite AEEL’s recommendation.

114.  D2 blamed Homechant for its failure to supervise the maintenance of the Lift by AEEL. At the same time, it is D2’s stance that AEEL was a competent contractor.

115.  What is clear is that AEEL did identify the problems with the Lift (or lifts) as early as 2009 and did make recommendation for new system in 2013. Neither was acted upon by D2. It is clear from the Lift Malfunction Record that lift incidents (including person trapping and lift stopping) kept occurring after 10 March 2014. Similar incidents apparently stopped after April 2015. It is more probable than not that it was due to the fact that the Lift was replaced during the major renovation of Daily House in 2015/2016.

116.  In the premises, it was the negligence of D2 in: (a) failure to maintain the Lift clean; and (b) failure to maintain and repair the Lift, that caused the Accident. D2 also failed to discharge its statutory under LEO and OLO.

117.  I do not find any evidence which suggests contributory negligence on the part of P.

118.  I find that D2 is wholly liable to P’s injuries and damages.

119.  In the premises, I also find that D2 is liable to contribute to or indemnify D1 under ECO and CLCO for the compensation made to P under DCEC 171/2016 together with the costs in defending the said proceedings.

120.  The sums claimed by D1 (which are not disputed by D2) are as follows:

EC Amount paid to P	$338,000
P’s own costs	$40,000
D1’s costs	$21,760.40
Interest	$106,602.66
Total:	$506,363 (round up)

121.  I order that D2 do pay D1 the sum of $506,363 under the Contribution and Indemnity Proceedings.

Quantum

122.  The plaintiff in his (Revised) Statement of Damages claims the following:

PSLA
Pre Trial Loss
29.5 months x HK$12,700 salary received	$270,000.00
4% Future Loss + salary received	$89,741.00
Post Trial Loss of Earnings
HK$12,700 x 12 x 26 (multiplier)	$3,962,400.00
Future Loss of Earnings: 4% from Compensation (Ordinary Assessment) Board

PSLA

123.  P did not specify the amount of PSLA and said he would “leave it to the court”.

124.  Mr Tsui simply said that as P did not plead any specific amount, he should not be entitled to PSLA at all.

125.  Mr Gidwani refers to Dr Fu’s evidence that the Accident had advanced P’s neck and back pain by an estimated duration of 3 years, and that P’s pre-existing degeneration would have naturally progressed into P’s current state.

126.  Dr Fu did not specify the percentage attributable to P’s pre-existing condition.

127.  Mr Gidwani suggested a discount of 15% under Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958 is appropriate.

128.  The following cases are relied upon by Mr Gidwani (without Chan Kam Hoi reduction):

(a) In Yau Po Shan v The Express Lift Co Ltd and Anor[2019] HKDC 1495, the plaintiff sustained soft tissues injuries at a lift accident. Examination revealed tenderness over neck, low back and right ankle regions. Cervical spine X-ray showed no fracture. PSLA was assessed at HK$180,000; and

(b) In Tong Chun Yip v Leung Sai Lau[2019] HKDC 48, the plaintiff suffered from a soft tissue neck and back injury at a traffic accident. MRI of cervical spine showed no nerve compression but only minimal disc protrusion of the C3/4 disc. The court considered these as uncomplicated “whiplash” injuries and awarded HK$120,000 for PSLA.

129.  Mr Gidwani submits that pre-Chan Kam Hoi damages for PSLA should not exceed $150,000. Adopting a 15% reduction, PSLA should become:

$150,000 x (100% - 15%) = $127,500

130.  Considering all the evidence before me, I am satisfied that PSLA, without any discount for the pre-existing degeneration, should be no more than $150,000. I agree that 15% discount is reasonable to reflect P’s pre-existing degeneration.

131.  I award PSLA at $127,500 accordingly.

Pre-Trial Loss of Earnings

132.  Mr Gidwani agrees that P could earn $12,700 each month, which is the figure pleaded in the (Revised) Statement of Damages. Mr Tsui does not admit the same but no contrary evidence is adduced by D2.

133.  I accept that P’s monthly earnings was $12,700.

134.  P was granted sick leave by his treating doctors for the period from 10 March 2014 to 4 August 2016.

135.  It is trite that the court is not bound by the period covered by medical certificates. The court is entitled to, and should, consider all the medical evidence available.

136.  Dr Fu’s opinion, which both Mr Gidwani and Mr Tsui agree, is that the appropriate length of sick leave is 6 months. Considering P’s minor injuries, I accept Dr Fu’s view.

137.  Mr Gidwani further allows 3 more months as grace period for P to look for a job after end of sick leave.

138.  It is reasonable and indeed normal to allow a few months grace period for a plaintiff to look for a job after expiry of sick leave. I shall allow 3 months as suggested.

139.  P’s damages for Pre-Trial Loss of Earnings (with MPF) is thus:

$12,700 x 9 months x 1.05 = $120,015.

Future Loss of Earnings & Loss of Earning Capacity

140.  Dr Fu is of the view that P can resume his pre-accident job.

141.  P insisted that he was unable to work at all. This is contrary to Dr Fu’s opinion.

142.  Both Mr Gidwani and Mr Tsui submit no damages should be awarded under these two heads.

143.  Further, as revealed under cross-examination, P received CSSA in a total sum of $12,000, which is more or less his pre-accident income.

144.  It is more P’s lack of incentive to take up any employment rather than a real handicap that prohibits him from returning to the labour market.

145.  Further, as noted by Dr Yap of the Department of Anaesthesia of Caritas Medical Center in her report dated 5 March 2019, P declined offers of pain nurse education and exercise therapy and was not receptive to active rehabilitation.

146.  It is up to P to help himself in his road to recovery. Indeed, P has the duty to mitigate his loss by taking up employment.

147.  I will disallow the claim under these 2 heads.

Summary on Quantum

148.  P is entitled to damages as follow

PSLA	$127,500.00
Pre-Trial Loss of Earnings (with MPF)	$120,015.00
Future Loss of Earnings	NIL
Loss of Earning Capacity	NIL
	$247,515.00

149.  Credit has to be given to the sum of $338,000 received under DCEC 171/2016.

150.  P effectively would not be entitled to any damages in the present proceedings as his ECC settlement sum exceeds the damages recoverable.

Conclusion

151.  I therefore dismiss P’s claim against D2.

152.  P’s case is dismissed against both D1 and D2.

Costs Order Nisi

153.  As P failed to prove his claim against D1 under the main action, I order P do pay D1’s costs, with Certification for Counsel, to be taxed if not agreed.

154.  As for costs between P and D2 in the main action, although D2 is found liable to P, P’s case is dismissed as damages fall below the EC settlement sum.

155.  I order P do pay D2’s costs, with Certification for Counsel, to be taxed if not agreed.

156.  As for the costs of the Contribution and Indemnity Proceedings between D1 and D2, I order D2 do pay D1’s costs, with Certificate for Counsel, to be taxed if not agreed.

157.  The above costs order would become absolute unless parties apply to vary in writing within 14 days of handing down of judgment.

158.  I am grateful for Counsel’s assistance.

The plaintiff appeared in person

Mr Victor Gidwani and Mr Conan Shek, instructed by John Lam, Law & Co, for the 1^st defendant

Mr Brian Tsui, instructed by CW Chan & Co, for the 2^nd defendant