LO KWOK KIT SAM v. LEUNG KWOK HUNG t/a KAISER (M&E) DECORATION ENGINEERING CO AND ANOTHER

DCPI 983/2020

[2025] HKDC 495

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 983 OF 2020

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JUDGMENT

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Introduction

1.  The 2^nd Defendant (“Shinryo”) was the main contractor of the construction works at a construction site, and the 1^st Defendant (“Kaiser”) was a sub-contractor of Shinryo. The Plaintiff (“Mr Lo”) was an employee of Kaiser.

2.  On 18 January 2018, Mr Lo was injured whilst working in the construction site. In this action, Mr Lo claimed against Kaiser and Shinryo for damages in relation to the incident.

Background

3.  Mr Lo was born on 10 August 1961 and received education up to the secondary level. He previously took up employment in various industries including logistics, warehousing, catering and renovation.

4.  He was registered as a construction worker with the Construction Industry Council and was issued the Construction Industry Safety Training Certificate. He has completed the Registered Minor Works Contractor (Individual) Class III Minor Works Training Course offered by the Hong Kong Institute of Construction.

5.  Prior to the incident, Mr Lo had worked as an electrician for about five years. He would work for different employers in different construction sites as and when required, and his remuneration would usually be calculated on a daily wage basis.

6.  Shinryo was the main contractor of the construction works in the construction site at SRL816C-West Kowloon Terminus (“Site”), with Kaiser being a sub-contractor. Since 12 January 2018, Mr Lo started working for Kaiser as an electrician to carry out electrical installation works in the Site.

7.  At around 3:30 pm on 18 January 2018, Mr Lo was assigned to work inside a room at the basement of the Site to install electrical conduit onto the wall, which was about three to four metres above the ground. He was provided with a ladder to carry out the work, and he claimed to have slipped and suffered injury in the right knee while climbing down the ladder.

Issues in Dispute

8.  Mr Lo claimed that there were many pipes with a diameter of about three feet that were fixed horizontally on the floor of the room. He had to walk on those pipes when he worked in that room. When he climbed down the ladder, he had to step onto a pipe that was placed on the floor and he slipped on the slippery surface of the pipe. He lost balance and fell onto the pipe.

9.  Mr Lo’s complaints about Kaiser and Shinryo’s negligence and breach of duties, as pleaded in his Amended Statement of Claim, boiled down to essentially one allegation, ie they should not have caused or permitted water, oil or other slippery substances to be present on the surface of the pipe, which posed as a danger to him. He was also not forewarned about the danger presented by the slippery surface of the pipe.

10.  Mr Lo has received employees’ compensation in the sum of $456,010.80. Mr Simon Wong, counsel for Kaiser and Shinryo who appeared with Ms Sabina Sui, informed me that the employees’ compensation was paid by way of settlement. While Kaiser and Shinryo did not dispute that Mr Lo suffered workplace injuries on 18 January 2018, they did not admit Mr Lo’s account of the incident and how he allegedly suffered the injuries.

11.  In their Defence, Kaiser and Shinryo denied the existence of the pipes in the room. They claimed that there was sufficient even surface inside the room for Mr Lo to step on when he climbed down the ladder. They carried out regular safety patrols and inspections. Mr Lo was provided with anti-slippery shoes and he was specifically instructed that when climbing down a ladder, he must maintain a three-point contact with the ladder (ie two hands plus one foot or one hand plus two feet) until he reached the ground or a stable platform. In any event, they contended that climbing down a ladder was simple and not complicated, and a prudent employer could entrust the employee with doing it reasonably safely.

12.  In the event that they were held to be negligent, Kaiser and Shinryo argued that Mr Lo was also contributorily negligent in that he should not have stepped onto the alleged slippery pipe and should have maintained his balance by sticking to the three-point contact method.

13.  In view of the aforesaid pleaded cases of the parties, there are the following issues to be resolved:-

(1)  Could Mr Lo prove that he suffered his injuries in the manner as he pleaded?

(2)  If the answer to (1) is in the affirmative, were Kaiser and/or Shinryo negligent and/or in breach of duties?

(3)  If the answer to (2) is in the affirmative, was Mr Lo contributorily negligent?

(4)  What is the quantum of damages?

Credibility of Witnesses

14.  In resolving factual disputes, I have regard to the following well-established principles:-

(1)  Where there is a host of contemporaneous documentation, such documentation must assume a special importance. The truth can best be tested by reference to contemporaneous documentation where it exists, as well as to inherent improbabilities having regard to all the facts that are known: Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439 at §135.

(2)  In assessing the credibility of a party’s case on a particular issue, the court should take into consideration the following: whether the party’s case is inherently plausible or implausible; whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable; where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, which is relevant to the assessment of his overall credibility; and the demeanour of the witnesses: Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513 at §53.

15.  In this case, other than Mr Lo himself, nobody witnessed how the incident happened. Essentially, he was put to proof of how he allegedly suffered the injuries, so it is important to assess his credibility. With regret, I find Mr Lo to be a wholly incredible witness and I observe that he would be ready to lie on oath and in court in order to advance his cause. Examples abound.

16.  Mr Lo has obviously lied about his post-incident employment:-

(1)  In his first witness statement dated 1 December 2020, he deposed that after the incident, he was involved in only two employment or self-employment. First, he once got engaged in the business of exporting powdered formula across the border to Shenzhen, Mainland China. Second, he took care of his former wife (whom he divorced in 2011) by buying groceries for her and doing housework for her.

(2)  In his two supplemental witness statements dated 18 November 2021 and 26 April 2023 respectively, and in his Revised Statement of Special and General Damages dated 21 May 2021, he did not mention any other employment after the incident.

(3)  However, during cross examination, he admitted that from February 2018 onwards, he would from time to time help people take their mobile phones to Shenzhen for repairs, and he would charge around $200 for each phone. He would also purchase toner cartridges in Shenzhen and resell them in Hong Kong for a profit of around $300 for one cartridge. Such evidence is also contradictory with his answers to interrogatories dated 12 July 2021, where he deposed that during all those trips to Mainland China between February 2018 and January 2020, he was engaged in the business of selling powdered formula only once. On other visits, he was either picking up online purchases for his own consumption or visiting his current wife’s family.

(4)  He has disclosed through his solicitors’ letter dated 18 May 2023 that he received income from temporary casual jobs only on three occasions on 7 July 2021, 6 August 2021 and 21 March 2022. Nevertheless, during cross examination, he admitted that after the incident he worked as a cashier in a Caltex gas station in Mount Davis for three to four months. He also took up jobs as a security guard in various places including Hotel Conrad in Admiralty. Further, he had worked in two finance companies.

17.  Relatedly, Mr Lo lied about the purposes of his various visits to Mainland China after the incident:-

(1)  According to Mr Lo’s statement of travel records issued by the Immigration Department on 1 June 2021, in the period between 18 January 2018 and 17 May 2021, he left Hong Kong for Mainland China for 27 times.

(2)  In his answers to interrogatories, Mr Lo deposed that on the occasion on 21 May 2019 he was selling powdered formula to buyers in Shenzhen. On 20 other occasions where he returned to Hong Kong on the same day, he was traveling to Shenzhen to pick up online purchases for his own use or consumption.

(3)  As noted above, Mr Lo’s answer was not true because he would in fact also purchase toner cartridges in Shenzhen for the purpose of reselling them, and he would take other people’s phones for repair there. Moreover, during cross examination, he tried to explain his travels to Shenzhen with references to his online purchase orders, but when pointed to him that the dates of various purchase orders were not consistent with the dates of his travels, he had to admit that those online purchases were irrelevant.

18.  Mr Lo has lied about the nature and sources of various deposits into his bank account:-

(1)  Mr Lo has disclosed his passbook records of his account in the Bank of Communications. Kaiser and Shinryo’s solicitors asked Mr Lo to account for various deposits.

(2)  In his first witness statement, Mr Lo explained that most deposits with the transaction code “SAC” were subsidies issued by the government under the individual-based work incentive transport subsidy scheme.

(3)  During cross examination, Mr Lo accepted that the said subsidy would at most be $600 a month. However, all of the deposits with the transaction code “SAC” were in sums larger than $600, some being significantly larger. For instance, on 13 June 2018, he received an “SAC” deposit of $6,600, followed by two “SAC” deposits of $2,000 and $1,200 on 5 July 2018 and 16 July 2018. Mr Lo was pressed to accept that those were not transport subsidies, and he said that maybe those were his wages or transfers from some other people. On 15 July 2019, he received another “SAC” deposit of $6,000, and when cross examined he had to accept it to be his wages.

(4)  His testimony in court did not only contradict his witness statement but also a previous letter issued by his solicitors. On 14 April 2023, Kaiser and Shinryo’s solicitors requested Mr Lo to explain the source and nature of the deposits again. On 27 April 2023, Mr Lo through his solicitors said that only five deposits (of $600, $2,580, $1,680, $600 and $600 respectively) were his income. On 18 May 2023, his solicitors clarified that in fact only three deposits (of $600, $2,580 and $1680 respectively) were his income. This explanation is wholly inconsistent with what Mr Lo said in court.

(5)  Furthermore, Mr Lo explained in his first witness statement that a larger number of deposits into his bank account were made by his former wife. As he would buy groceries for her and make payments first, she would repay the money to him. On top of that she would lend money to him. However, during cross examination, he said his former wife actually paid him remuneration for helping her out with the housework. He testified that his former wife would pay him $37.5 per hour and he worked for her for around 36 to 80 hours a month. Such testimony is completely different from what Mr Lo said in his witness statement and in his solicitors’ letter dated 27 April 2023 and 18 May 2023.

19.  Mr Lo said his former wife lent him money but his explanation is inherently impossible and is contradicted by his former wife’s evidence:-

(1)  In his first witness statement, Mr Lo said after the incident, his former wife would lend him $12,000 a month to support his living. He repaid the principal together with interest to her in the sum of $368,625 after he received his employees’ compensation in around June 2020.

(2)  During cross examination, he said he owed his former wife a total of about $220,000. When asked why he would repay a significantly larger sum of $368,625 to her, he said he feared that he would spend all of his settlement money, so he would rather let his former wife hold the extra money on trust for him. This explanation is so inherently impossible that I have no hesitation in rejecting it. Given his financial condition and that he got remarried in 2013, there is absolutely no reason for him to ask his former wife to hold the only sizeable wealth that he had for him. Such an explanation emerged only in cross examination and was obviously made up by him on the spot.

(3)  Mr Lo called his former wife Ms Tang Po Sim as a witness, but her evidence did not corroborate his. Ms Tang said she lent $12,000 a month to Mr Lo for 29 months and the total loan principal was $348,000. They agreed that Mr Lo would pay her interest in the tune of $20,000, so eventually Mr Lo repaid her $368,625. Ms Tang’s account of the event is markedly different from that of Mr Lo.

(4)  Worse still, Ms Tang’s account was in itself fraught with loopholes that could not be explained away. She could offer no explanation why she and Mr Lo would agree on a rather awkward sum of $20,625 to be the interest payment. In her witness statement, she said she lent the money to Mr Lo in cash. During examination in chief, she changed her evidence by saying that some loan advances were paid to Mr Lo by cheques. When shown in cross examination that Mr Lo’s bank account did not record any cheque deposit of $12,000, she could not offer an answer. But in re-examination, she modified her evidence yet again by saying that some cheques were cash cheques.

20.  Ms Tang’s evidence was mostly related to the financial situation of Mr Lo after the incident and had no bearing on the incident itself. In this sense her evidence is not very significant. Having said that, I still cannot help being driven to the conclusion that Mr Tang is not an honest witness:-

(1)  As noted above, Ms Tang’s account of the loans to Mr Lo was inconsistent with that of Mr Lo, and her account was in itself unbelievable.

(2)  Further, in her witness statement, while she said that after the incident Mr Lo helped her with her housework, she said nothing about having remunerated Mr Lo. In cross examination, she said she paid minimum wage to Mr Lo.

(3)  She as employer helped Mr Lo apply for transport subsidy. In the specified form that she produced, she stated that Mr Lo worked for her for 72 hours each month between July and December 2019. This is inconsistent with Mr Lo’s testimony; he said he worked for her for around 36 to 80 hours a month. Indeed it is also inconsistent with Ms Tang’s own testimony. In her examination in chief, she said Mr Lo worked for her around four times a week, or ten times a month. In cross examination, she said Mr Lo worked for her for 4.5 hours a day. Such evidence does not tally with her representation to the government that Mr Lo worked for her for 72 hours a month.

21.  All in all, both Mr Lo and Ms Tang are unreliable witnesses. It can be seen from the above analysis that they made up evidence to exaggerate the financial hardship of Mr Lo after the incident and to conceal Mr Lo’s post-incident employments. What also alarmed me is that Ms Tang did not purchase labour insurance for Mr Lo and there was no written employment contract between them, which casts serious doubt on the veracity of their so-called employment relationship. That said, since this is not an issue to be resolved in this trial, and Mr Simon Wong for Kaiser and Shinryo understandably did not push the matter that far, I do not have to determine if Mr Lo and Ms Tang were conspiring to defraud the government in order for Mr Lo to obtain transport subsidies.

22.  On Kaiser and Shinryo’s side, witness statements from four witnesses have been filed. Eventually, only Mr Kung Siu Kei, who was the safety officer of Shinryo at the material time, was called to testify in court. Mr Simon Wong explained to me that the case was defended on the instructions of the insurer who exercised its right of subrogation, and the insurer was unable to contact two witnesses and to secure the attendance of another witness. I think it suffices for me to disregard the witness statements of those three witnesses and I do not think it is necessary for me to draw any adverse inference against Kaiser and Shinryo for failing to tender those three witnesses for cross examination. In fact, Mr Tommy Lo, counsel for Mr Lo, has sensibly not invited me to draw any adverse inference.

23.  As to Mr Kung, he did not witness the occurrence of the incident and he was not the person who compiled the accident report. He could not even tell the location where Mr Lo allegedly slipped, and the environment of the room at the time of the incident. His evidence mostly touched upon the training provided to Mr Lo and other workers and the inspections carried out by Shinryo. There is no credibility issue with Mr Kung.

Issue (1) - Occurrence of the Incident

24.  As noted above, while it is not disputed that Mr Lo suffered injuries in the Site when he was working for Kaiser, Kaiser and Shinryo denied the existence of pipes in the room and put Mr Lo to strict proof of how the incident actually occurred. It is thus incumbent for Mr Lo to prove his pleaded case.

25.  The importance of pleadings cannot be emphasized more:-

(1)  In Kwok Ching Wing v 21 Holdings Limited (2013) 16 HKCFAR 663 at §21, Ma CJ stated that the basic objective of pleadings was fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party so that proper preparation was made possible, and to ensure that time and effort are not expended unnecessarily on other issues. It was the pleadings that would define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses were involved, it would be the pleaded issues that define the scope of the evidence, and not the other way round. It would not be acceptable for unpleaded issues to be raised out of the evidence which was to be or had been adduced.

(2)  In Sinoearn International Ltd v Hyundai-CCECC Joint Venture (2013) 16 HKCFAR 632 at §§30-34, Chan PJ stated that pleadings were not mere formalities. They imposed a necessary discipline and were fundamental to enabling every procedural facet of the adversarial system to operate fairly. The other party was entitled to know from a clear pleading what was the entire case he had to meet so he could decide whether particulars should be sought, how he should plead in response, what discovery he was entitled to, what evidence he should adduce and what points of law should be taken.

26.  More specifically relating to personal injuries cases, Ribeiro PJ said the following in Mak Kang Hoi v Ho Yuk Wah David (2007) 10 HKCFAR 552 at §102 (which itself was not a personal injuries case):-

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

27.  The necessity for a plaintiff in a personal injuries action to prove the pleaded way the accident occurred is illustrated in Lau Ting Keung v Chan Wai Ying trading as Wai Shun Engineering Co[2019] HKCFI 992:-

(1)  The plaintiff there, a welding worker, alleged that he fell from a ladder and was injured while working in a site. The defendants did not dispute that the plaintiff fell from a ladder and injured, but they took issue with how the accident exactly took place.

(2)  The pleaded case of the plaintiff was that on one occasion when he “was climbing up to work”, he “fell off the ladder onto the floor and then lost consciousness”.

(3)  DHCJ Keith Yeung SC (as K Yeung J then was) noted that there was no evidence as to whether the plaintiff was going up or coming down from the ladder when the accident took place, and the court did not know from what height the plaintiff fell. The learned Judge went on to hold that the plaintiff failed to establish his case as framed.

28.  Another illustration can be found in Wu Dip Oi formerly known as Wei Yuling v Harbour City Estates Limited[2023] HKDC 1450. The plaintiff’s case there was that she slipped on the corridor because its surface was slippery. However, in evidence she could not clearly say whether she slipped on the corridor or was tripped over and fell. DDJ Walker Sham held that the plaintiff could not discharge her burden in proving her case that she fell because the corridor was slippery.

29.  In a more recent case So Kai Wing v Sino Estates Management Limited[2024] HKDC 1829, the plaintiff alleged that he slipped on the lift lobby and fell on the ground because the floor was wet. DDJ Ebony Ling found that the plaintiff did slip and fall, but she held that the plaintiff could not prove that he fell because of the wetness complained of and she dismissed the plaintiff’s claims. This is yet another demonstration of the importance for a plaintiff in a personal injuries action to prove the incident as pleaded.

30.  In the present case, Mr Lo pleaded in his Amended Statement of Claim that on 18 January 2018, when he climbed down from the ladder he “stepped onto a pipe fixed horizontally on the floor, he slipped upon the slippery surface of the pipe, lost balance and fell down onto the pipe”. Among the particulars he gave regarding the negligence or breach of Kaiser and Shinryo, he pleaded the following in §6 of the Amended Statement of Claim:-

“(a) Causing or permitting water, oil or other slippery substances to be present upon the surface of the said pipe.

(b) Causing or permitting the said pipe to be or to become or to remain a danger and a trap to persons lawfully using the same.

(c) Failing to cany out any or any adequate inspections of the Site

(d) Failing to take heed of the danger of the slippery surface of the said pipe.

(e) Failing to warn the Plaintiff of the danger of the presence of the slippery surface of the said pipe.

(f) Failing to provide safe place of work;

(g) Failing to provide the Plaintiff with a safe system of work; and

(h) Exposing the Plaintiff to unnecessary risk of injury which the 1^st and/or the 2^nd Defendants ought to have known.”

31.  It is clear that his pleaded case was that the cause of the incident was that the surface of the pipe on which he stepped on while climbing down the ladder was slippery. His pleaded complaint was not that the pipes were inherently dangerous and should not have been placed there, or that he should have been provided with a work platform or a safer ladder for carrying out his work. It is thus incumbent for him to prove that he did step on the pipe when he was climbing down the ladder, and that the surface of the pipe was slippery.

32.  In determining whether Mr Lo could prove his pleaded case, I would have particular regard to contemporaneous documentation, which according to well-established principles must assume a special importance.

33.  It is noteworthy that Mr Lo did not take any photos of the room or the pipe at the time of the incident. But according to him, right after the incident he did report his injuries in a WhatsApp group comprising his contractor and co-workers, and his messages were telling:-

(1)  At 3:33 pm on 18 January 2018, he reported to the group that he fell from the ladder (“羅國傑報工傷 (從梯跌下)”).

(2)  He repeated the same message at 3:43 pm and added that he injured his leg and knee.

(3)  On both occasions, he did not say he slipped on the pipe. Rather, he clearly said he fell from the ladder. During cross examination, he was offered the opportunity to explain, but all he could say was that he too casually dismissed the incident (“我睇小咗呢單意外”). I do not consider it to be a satisfactory explanation as to why he did not simply say he slipped on a pipe.

34.  An accident report prepared by Shinryo dated 27 February 2018, disclosed by Mr Lo, also sheds light on the cause of the incident. I am aware that the author of this report is not known and Shinryo’s witness Mr Kung admitted that he did not know who compiled the report, so I have to be cautious in considering the reliability and probative value of this report. Having said that, the report did state that Mr Lo “claimed that he sprained his right knee when he was climbing down from lowest step of ladder platform to the ground.” This is consistent with what Mr Lo said in the WhatsApp group.

35.  Further, Mr Ng Ka Shing, another employee of Kaiser, attended an interview with TRM (Case Management) Services on 29 November 2018 regarding the incident, and the interview was recorded in writing. Mr Ng did not testify at the trial, but I am entitled to take into account the contemporaneous interview record as hearsay evidence. In the interview, Mr Ng said while he did not witness the occurrence of the incident, he was informed on the spot by a safety officer (a Mr Lam) that Mr Lo told the safety officer that he slipped on the penultimate step of the ladder when he climbed down the ladder. This without doubt is multiple hearsay, but it again is consistent with what Mr Lo said in the WhatsApp group right after the incident.

36.  Similar records of the incident can be found in a letter issued by the Labour Department (which I would, again, consider with caution as it is hearsay evidence). On 4 September 2018, the Labour Department issued a letter to Kaiser to ascertain if Kaiser would admit liability as the employer. It was stated therein that according to information provided by Mr Lo, he lost balance and fell while climbing down the ladder (“從鋼梯落地時，失去平衡跌倒”). There was no mention of the pipe, let alone a pipe with a slippery surface.

37.  I also take into account the contemporaneous medical records:-

(1)  On 26 January 2018, Mr Lo attended the Sai Ying Pun Jockey Club General Out-Patient Clinic. In the consultation note written by Dr Chiu Yuen Chun, it was recorded that Mr Lo “fell from stair” and he could not “tell the mechanism”. In cross examination, Mr Lo said maybe he did not express himself clearly or the doctor may have made an inaccurate record.

(2)  On 20 February 2018, Mr Lo attended the Violet Peel General Out-Patient Clinic. In the consultation note written by Dr Jacky Lee, it was again recorded that Mr Lo “[f]ell from stair” and that Mr Lo was “unable to tell exact mechanism of injury”. In cross examination, Mr Lo said he would blame himself for not having mentioned the pipe and seriously told the doctor how the incident occurred.

(3)  Mr Lo had another visit to a Hospital Authority clinic on 10 March 2018, and the consultation note also recorded that Mr Lo “[f]ell from stair” and that he was “unable to tell exact mechanism of injury”.

(4)  I accept that the doctors could have made inaccurate records and Mr Lo had no control as to how the doctors wrote their consultation notes. However, as noted, Mr Lo did admit he should have been more serious in informing the doctors of the pipe. He accepted in cross examination that the fact that the pipe was slippery was an important matter. Against this his purported explanation that he omitted to tell the doctors about the pipe rings hollow.

(5)  These medical records are again aligned with what Mr Lo told his co-workers in the WhatsApp Group.

(6)  I have not lost sight of the fact that on 15 March 2018, Mr Lo attended the Sai Ying Pun Jockey Club General Out-Patient Clinic, and in that consultation note, the doctor did say Mr Lo said he “fell when stepping on a big metal pipe at work”. However, this consultation took place two months after the incident and was of less probative value than the two previous consultations, especially when Mr Lo could not tell in the two earlier consultations the mechanism of his injury.

38.  It is also instructive to have regard to Mr Lo’s own evidence. While he pleaded that there were water, oil or other slippery substances on the surface of the pipe, he gave a somehow different version in his first witness statement, where he said there was sand and gravel on the surface of the pipe (“喉管上有地盤的沙石”). In cross examination, he said he did not know if there was oil on the pipe but he could tell there was no water on it. This inconsistency, coupled with my finding that Mr Lo was in general an utterly unreliable witness, also casts serious doubt on the veracity of Mr Lo’s pleaded claim.

39.  Having taken into the above matters, I find that Mr Lo was unable to prove on a balance of probabilities his pleaded case that he stepped on the surface of a pipe which was slippery and fell as a result. For the avoidance of doubt, I should record that I do accept Mr Lo’s saying that at the time of the incident, there were pipes in the room. What Mr Lo failed to prove was that the pipe’s surface was slippery and he slipped while stepping on it.

40.  In this connection, it may be noted that Mr Lo previously sought an order for MTR (ie the employer of the construction project) to allow him to enter the Site and do inspection. In allowing the application, Master Louise Chan commented that Mr Lo had a good recollection of the layout of the room. He built a model mock-up of the layout of the room and MTR confirmed that it generally matched the actual layout of the room: see the learned Master’s decision in [2023] 2 HKLRD 119.

41.  Furthermore, from the photos taken by Mr Lo at the inspection, there were indeed large pipes installed in the room, though they were not placed or fixed on the floor. A reasonable guess would be that at the time of the incident, those pipes were already in the room only to be installed later. There is no suggestion that Mr Lo went back to the Site or room ever again after the incident, so he could not have known that there would be pipes installed in the room and retrospectively made up a story that there were pipes on the floor of the room at the time of the incident.

42.  Mr Lo’s failure to prove his pleaded version of the incident is no small matter. That was the case that Kaiser and Shinryo were expected to meet and answer. If Mr Lo fell from the ladder and had advanced his case that way, Kaiser and Shinryo could have adduced factual and expert evidence on the safety of the ladder provided to Mr Lo. If Mr Lo fell because there was insufficient lighting in the room, Kaiser and Shinryo could have adduced factual and expert evidence on the sufficiency of the lighting. Indeed, Mr Tommy Lo fairly accepted that if I was not to believe Mr Lo’s version of the incident, then he would fail to discharge his burden of proof (although in his submissions he did make complaints about Mr Lo being provided with only a straight ladder instead of an A-shaped ladder and that the room was filled with rubbish at the material time).

43.  As Mr Lo failed to prove the incident as pleaded by him, his claims fall to be dismissed in their entirety.

Issue (2) - Negligence/Breach of Kaiser and Shinryo

44.  Given my finding on issue (1), this issue (2) does not arise for determination. For the sake of completeness, I shall set out my views on the basis that Mr Lo slipped on the slippery surface of the pipe when he was climbing down the ladder.

45.  The following principles regarding the liability of an employer of labour are well established:-

(1)  In approaching the question of whether there was any negligence or breach of the statutory duties, it is important to bear in mind that the law does not require perfection. The employer is not an insurer of his employee’s personal injury. There is hardly anything in the world which could not be better done with the benefit of hindsight. An employer is not liable simply because after the event someone is able to make some extravagant suggestions of how things could be better arranged to avoid that particular accident: see Ng Kong v Golden Caterers Ltd HCPI 206/2004 (unreported, 3 March 2005) at §24 per Recorder Edward Chan SC.

(2)  The common law duty of an employer is to act reasonably in all the circumstances. He should employ competent servants, supply them with adequate plant and give adequate directions as to the system of work or mode of operation, but this does not mean that the employer must decide on every detail of the system of work or operation. Where the operation is simple and the decision how it shall be done has to be taken frequently, it is natural and reasonable that it should be left to the foremen or workmen on the spot: Winter v Cardiff Rural District Council [1950] 1 All ER 819 at 822H-823A.

(3)  The law does not require an employer to treat its workers, in the carrying out of their everyday normal jobs which do not entail any special risk or danger by the workers, as though they were kindergarten pupils who if not told, would not be aware of the kind of common everyday risks that a reasonable person should be aware of: Lam Ka Lok Louis v Swire Properties Management Ltd HCPI 914/2003 (unreported, 30 April 2005) at §39 per Suffiad J.

(4)  The standard of safety to be applied in a nursery cannot be applied to a construction site. Water, mud, building debris are the usual things to be found in a construction site. Those who work in a construction site must be aware of these obvious, usual and inherent dangers of working in a construction site: Wong Wing Chow v Lee Wing Hang Patrick t/a Wing Shun Construction Company HCPI 244/2002 (unreported, 24 October 2003) at §16 per DHCJ To (as To J then was).

46.  It is important to bear in mind that in his Amended Statement of Claim, Mr Lo made no complaint about being provided only with a straight ladder as opposed to an A-shaped ladder or work platform, and he made no complaint about the lighting condition of the room, although he did make a general plea that Kaiser and Shinryo failed to provide him with a safe place of work and a safe system of work. But Mr Lo did not elaborate on that general plea with any particulars.

47.  The crux of his complaint remained that he had to step on the pipe, of which the surface was slippery. Assuming that he could establish this claim, I am of the view that there was no negligence or breach of duties on Kaiser and Shinryo’s part for the following reasons:-

(1)  The Site was a large construction site. By its nature there would inevitably exist debris, sand and gravel in Mr Lo’s working environment.

(2)  By the time of the incident, Mr Lo had already worked in the Site for a few days. There was no suggestion by Mr Lo that the working environment drastically changed on the day of the incident, or that he was not aware of the existence and condition of the pipe in the room, or that he did not know he had to step on the pipe when climbing up or down the ladder.

(3)  There was no dispute that Mr Lo was provided with anti-slippery shoes, and that he was provided with safety training prior to commencing work. Mr Kung’s evidence that there were regular inspections of the Site was also not challenged by Mr Lo.

48.  Even if I were to interpret Mr Lo’s plea more generously and to allow him to advance his complaint about the provision of a straight ladder and the lighting condition, my conclusion would be the same. Having considered Mr Lo’s witness statements and testimony, I cannot discern any evidence suggesting that working on a straight ladder was inherently or unreasonably unsafe, or that the lighting condition of the room posed any danger to Mr Lo.

49.  By reason of the aforesaid, if Mr Lo could establish his pleaded complaint that he slipped on the slippery surface of the pipe (or even his complaint that he was only provided with a straight ladder and there was insufficient lighting in the room), I would hold that Kaiser and Shinryo were not negligent and did not breach any duties, be it duty of care, statutory duty, or duty as an occupier.

Issue (3) – Contributory Negligence

50.  Since I have ruled against Mr Lo on both issues (1) and (2), there is no need to determine if Mr Lo was contributorily negligent. For the sake of completeness, I shall set out below my views on this issue.

51.  The principles on contributory negligence are well established. It simply means that an employee undertaking activity in the course of his employment owes a duty of care to himself, and if he failed to use reasonable care for his own safety and contributed to his own damage, there could be a reduction in the award. The court would take into account the following considerations:-

(1)  The level of skills and experience the employee has attained; the higher the level the more he is liable to look after himself. The degree of pressure imposed upon an employee by his employer to maintain or increase output at the expense of cautio; the greater the pressure, the less the employee is to blame. The degree of familiarity the employee has with that activity which puts his own safety at risk: So Chung Kwong v Ho Kuen [2000] 3 HKLRD 241 at 249F-I.

(2)  A distinction has to be drawn between the situation where there has been momentary inattention on the part of the injured employee and the conscious acceptance of a risk by the employee. If the employee is skilled and the precaution which would have avoided the accident complained of is a simple one, the employee can properly be required to bear the greater responsibility: Ng Tim Yip Kevin v Chan Ho Kin CACV 285/2007 (unreported, 23 October 2008) at §52.

52.  In their Amended Defence, Kaiser and Shinryo pleaded that Mr Lo was contributorily negligent in, among others, the following manner:-

(1)  Stepping on the pipe instead of the floor when descending the ladder.

(2)  Failing to maintain a three-point contact with the ladder when descending it.

53.  Having taken into account the following matters, I would have found Mr Lo to be contributorily negligent had it been necessary for me to determine the issue:-

(1)  Mr Lo did not dispute that before commencing work, he was instructed to maintain a three-point contact with the ladder when ascending or descending it, and he did not dispute that he was not under time pressure.

(2)  If he had maintained the three-point contact as instructed, then even if he had to step his right foot on the pipe of which the surface was slippery, he would still have been holding the ladder with his two hands and he should not have slipped.

(3)  Climbing up and down a ladder is not in itself a complicated task, and Mr Lo being an experienced electrician with related qualifications should have no difficulty in properly using it to avoid injuries.

(4)  Further, apart from saying that there was rubbish on the floor of the room, he could offer no reason why he had to step on the pipe instead of the floor when going down the ladder. He adduced no corroborating evidence on how much rubbish there was on the floor. He also did not explain why having worked in the Site for a few days, he did not clear the rubbish on the floor if the quantity of the rubbish was so significant that he was prevented from walking freely on the floor.

(5)  On the other hand, Mr Kung from Shinryo said there were regular inspections of the Site, and workers were reminded to maintain a clean working environment. On balance, I do not consider it necessary for Mr Lo to step on the pipe instead of directly on the floor when he descended the ladder.

54.  The next issue would have been the percentage share of Mr Lo’s contributory negligence. I consider that the facts of this case (assuming I had accepted Mr Lo’s version of events) bears similarities to the following two cases, and I would have found Mr Lo to be 50% contributorily negligent:-

(1)  San-To, Po Yuk Hitler v Wing Kwong Painting Co Ltd [2004] 2 HKLRD 169: The plaintiff there sustained injuries when descending a ladder. He was found to have failed to notice the plain defects with the ladder and failed to wait until his left foot had reached the third rung of the ladder before swinging his right foot over to the left side of the ladder. Suffiad J found him to be 50% contributorily negligent.

(2)  Wong Wing Chow (supra): The plaintiff suffered injuries while climbing down a ladder. DHCJ To stated that had the employer been held liable for providing the plaintiff with a ladder without handrail, then he would have found the plaintiff to be 50% contributorily negligent for choosing to descend the ladder with his back to it.

Issue (4) - Quantum

55.  According to the joint medical report dated 21 April 2021 prepared by Dr Chester Lie and Dr Peter Ko:-

(1)  Mr Lo reported that on the day of the incident he attended a bone setter. He subsequently attended public out-patient clinics as well as private clinic, both western and Chinese. He received an anterior cruciate ligament and meniscus surgery in March 2019. By the time of the joint report, he was having physiotherapy and occupational therapy sessions.

(2)  Mr Lo complained to the two experts that he suffered pain in his right knee over anterior and both sides especially the medial side. He would feel especially painful he if walked for 30 minutes or more, walking on stairs, during weather change or after exercise. He could conduct daily activities and take public transportation on his own.

(3)  Both experts diagnosed Mr Lo with right knee anterior cruciate ligament (“ACL”) and meniscus tear. Both experts opined that the mild degeneration over Mr Lo’s right knee was pre-existing and that there was a strong possibility that some other event or natural progression of the existing condition would have brought about the problem.

56.  The experts somewhat differed on whether the ACL tear was caused by the incident on 18 January 2018. Dr Lie opined that it was possible that the incident caused the ACL and meniscus tear, while Dr Ko found it doubtful. Neither expert could say with certainty if the incident did cause such injuries, and as Mr Lo bore the burden of proof, I am not satisfied that he discharged the burden. In any event, I prefer the opinion of Dr Ko to that of Dr Lie:-

(1)  The MRI result showed that the ACL tear was chronic, not acute. Dr Lie offered an explanation – the MRI was done some six months after the incident, so it was possible for the MRI to show feature of chronic tear. However, it can be seen that because of this MRI result, Dr Lie had to qualify his opinion. Earlier in the report, he said in a much certain tone that the incident was the cause of the injury. In view of the MRI result, he could merely say that it was possible that the incident caused the injury.

(2)  Dr Lie opined that a patient with ACL tear and meniscus tear would usually have a swelling knee, decreased range of motion and medial knee pain with tenderness. He acknowledged that the out-patient clinic records one month after the incident did not show such symptoms, but he said after one month it was possible that the records would show that there was not much swelling with Mr Lo’s knee (though the records actually said “no swelling”) and that the knee had a good range of motion (though the records actually said “full range”). It appears that Dr Lie could not explain away what was actually stated in the records. He also did not try to address the medical records prepared eight days after the incident.

(3)  Dr Ko noted from the medical records prepared eight days after the incident that Mr Lo’s walking was not affected, there was no record of a swelling knee, and the right knee tenderness was only mild. The medical records one month after the incident again noted that Mr Lo could walk unaided with no swelling knee. Further, there was no mention of effusion or erythema. Dr Ko opined that it would be difficult to image how a person with significant structural loss and derangement of ligamentous and soft tissue structures in the knee would not have been detected with significant impairment in the range of motion and with walking difficulties.

57.  The two experts also held different opinion as to Mr Lo’s residual conditions and actual discovery. Dr Lie was of the view that Mr Lo suffered from residual right knee pain with stiffness and weakness, whereas Dr Ko opined that Mr Lo’s recovery was better than what Mr Lo claimed. In this regard I am disinclined to accept Dr Lie’s views:-

(1)  In coming to his conclusion, Dr Lie appeared to have accepted Mr Lo’s subjective saying that he needed the aid of a walking stick for a long walk and that he could not squat or walk up more ten steps of stairs. The aforesaid complaints of Mr Lo, however, are at odds with the objective medical records.

(2)  More importantly, Kaiser and Shinryo placed Mr Lo under surveillance in May 2019. From the relevant video footage, I observe that on 14 May 2019, Mr Lo could walk unaided. On 21 May 2019, he was able to travel from Wanchai to shop around pharmacies in Sham Shui Po and carry his luggage and backpack to Shenzhen. When he was in Shenzhen, there was an episode where he could even climb up the railing on the side of the pavement and jump down onto the ground. Dr Lie did not address the surveillance findings.

(3)  Further, as noted earlier in the judgment, in the period between 18 January 2018 and 17 May 2021, Mr Lo left Hong Kong for Mainland China for 27 times. He took his first trip to Shenzhen on 5 February 2018, ie fewer than three weeks after the incident. This is certainly not what a person with walking difficulties would have done, especially when Mr Lo had no pressing need to travel. I also take into account my finding above that Mr Lo is an utterly untruthful witness and the fact that he allegedly managed to start doing housework for his former wife not long after the incident.

58.  Having considered the injuries and recovery of Mr Lo, I consider that an appropriate award for pain, suffering and loss of amenity (“PSLA”) would be $180,000. Mr Lo’s claim for $300,000 under this head is grossly exaggerated. I find that this case bears resemblance to Rukhsar Begum v Native English Centre t/a The Green Lounge DCPI 2243/2015 (unreported, 3 April 2017), where the plaintiff fell at work and injured her right ring finger and right knee with reduced range of movement and a possible tear of the posterior horn of the medial meniscus. Her Honour Judge Levy awarded that plaintiff PSLA of $180,000.

59.  I would have to make adjustment of the PSLA by taking into account Mr Lo’s pre-existing condition, which the experts agreed to be a scenario two situation (see Chan Kam Hoi v Dragages et Travaux Publics [1998] 2 HKLRD 958). A 30% reduction would be appropriate, like what DDJ KC Chan (as His Honour Judge then was) did in a similar situation in Law Sze Chun v Li Mie Chun[2018] HKDC 1172. So I would have awarded PSLA in the sum of $126,000.

60.  As to loss of earnings and MPF, Mr Lo pleaded that prior to the incident he worked as an electrician with a daily wage of $1,000 with overtime payment. He claimed to work for 25 days a month on average, earning $28,000 a month. He claimed $1,344,000 under this head, with a notional trial date being 19 January 2022. These are nothing more than bare assertions. Mr Lo relied on the fact that for the work at the Site he was earning $1,000 a day and he could work for 25 days a month for that project. That, however, does not mean that he could always undertake that much work with such a daily wage prior to the incident. For instance, from the limited disclosure made by Mr Lo, I can only be certain that in 2016 Mr Lo worked for 33.5 days in total earning $27,697.5 in aggregate.

61.  On the other hand, Kaiser and Shrinyo have adduced evidence to show that the average earnings of comparable workers would be $18,829.63. I am prepared to accept it as the pre-trial monthly earning that Mr Lo could have earned.

62.  Mr Lo pleaded that he had been granted sick leave up to the notional trial date. It is trite that sick leave certificates are not conclusive evidence of when a patient is able to get back to work (see Tam Fu Yip Fip v Sincere Engineering & Trading Co Ltd [2008] 5 HKLRD 210). On his own case, Mr Lo was able to start doing housework for his former wife after the incident. He was able to earn money by exporting powdered formula to Shenzhen and reselling goods purchased in Shenzhen. He took up various employments which only came to light during the trial. I accept Kaiser and Shinryo’s submission that the sick leave period should be at most 16 months.

63.  On the basis that Mr Lo was earning $18,829.63 with a 16-month sick leave, and taking into account the contributions for MPF (ie adding a multiplier of 1.05), I would have awarded pre-trial loss of earnings at $316,337.78 (ie $18,929.63 x 1.05 x 16). That said, on Mr Lo’s own case after the incident he managed to earn income by working for his former wife. On the basis that Ms Tang’s evidence that Mr Lo worked for her for 72 hours were true, Mr Lo earned $2,700 a month. I would give credit to such earnings and adjust the damages under this head to $273,137.78 (ie $316,337.78 - $2700 x 16).

64.  Mr Lo claimed future loss of earnings of $1,173,397 and loss of earning capacity of $129,656. Considering the progress of his recovery, his ability to travel frequently to Shenzhen and his capabilities of taking up various employments (including working as a supporting assistant in a Hospital Authority accident and emergency room earning $18,000 a month from September 2024 to January 2025), I am of the view that Mr Lo could resume his pre-accident job and no damages would be awarded for loss of future earnings. Further, he would reach the ordinary retirement age of 65 on 10 August 2026, so I do not think it is appropriate to aware damages for loss of earning capacity.

65.  For special damages, Mr Lo claimed medical expense of $19,400, travelling expenses of $15,000 and tonic food and accessories of $2,000. There is no documentary evidence substantiating the latter two claims. Part of the medical expenses were related to Mr Lo’s ACL tear, which I do not accept to be caused by the incident. Taking a necessarily broad-brush approach, I would have awarded $15,000 for special damages.

66.  In sum, if I had ruled in Mr Lo’s favour on liability, I would have awarded him $414,137.78 ($126,000 for PSLA, $273,137.78 for pre-trial loss of earnings and $15,000 for special damages). A 50% downward adjustment would have had to be made for contributory negligence, bringing the quantum to $207,068.89. As the employees’ compensation received by Mr Lo earlier in the sum of $456,010.80 already exceeded the award that I would have granted, Mr Lo’s claims in this action must be dismissed one way or another.

Conclusion

67.  By reason of the aforesaid matters, I hereby dismiss Mr Lo’s claims against Kaiser and Shinryo in their entirety.

68.  As to costs, day one of the trial was adjourned as Kaiser and Shinryo asked for time to address the new evidence which I allowed Mr Lo to adduce at the commencement of the trial. I consider that the adjournment was necessitated by Mr Lo’s seeking indulgence and the costs occasioned by it should not be borne by Kaiser and Shinryo. Separately, given my finding that Mr Lo was an untruth and unreliable witness, and that he exaggerated his injuries and financial hardship and that he concealed his post-incident employments, indemnity costs would be appropriate.

69.  I therefore make an order nisi that:-

(1)  Mr Lo do pay Kaiser and Shinryo the costs of the action including all costs reserved, to be taxed if not agreed on an indemnity basis with certificate for one counsel.

(2)  Mr Lo’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Tommy Lo, instructed by Tang, Wong & Chow, for the plaintiff

Mr Simon Wong & Ms Sabina Sui, instructed by Deacons, for the 1^st and 2^nd defendants

DCPI 983/2020

[2023] HKDC 268

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 983 OF 2020

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DECISION

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Background

1.  By a Writ of Summons issued on 8 May 2020, the Plaintiff brought a claim against the 1^st and 2^nd Defendants (collectively known as the “Defendants”) in a person injuries action arising out of an accident that occurred during his employment with the 1^st Defendant on 18 January 2018 while he was working at the West Kowloon Terminus (“WKT”).  The Plaintiff averred that the accident was caused by the negligence and/or breach of statutory duty and/or breach of common duty of care on the part of the Defendants and/or their employees and/or agents.

2.  It is the Plaintiff’s pleaded case that he was provided with a ladder to install an electrical conduit inside a room at the basement of the WKT (the “Accident Room”).  He was required to step onto a pipe that was fixed horizontally on the floor (the “Pipe”) while descending from the ladder.  He alleged that he lost balance when stepping on a pipe and sustained a right knee injury as a result from the fall (“the Accident”).

3.  It is the Defendants’ case that, inter alia, no pipes were installed in the Accident Room where the Plaintiff was injured and put him to strict proof.

4.  Witness statements of the Plaintiff and the Defendants were exchanged on the 3 December 2020.  A 吳家成who was employed by the 1^st Defendant as an electrician (“Ng”) filed a witness statement.  It is not disputed that he attended the scene of the Accident shortly after the Plaintiff called for help and found him sitting on the floor.  Ng addressed the Accident Room where he found the Plaintiff as “環境控制系統機房” (the “機房”) and averred there were no pipes fixed on the ground of this 機房 when he was there[1].

5.  Evidence revealed that the Plaintiff personally contacted MTR Corporation Limited (“MTR”) on numerous occasions between August and September 2021 in an attempt to seek clarification and/or confirmation as to, amongst other things, the existence of the Pipe in the Accident Room.  Later on 4 November 2021, MTR supplied two photos showing a close up of some pipe-like structure (the “2021 Photos”) and a pipe layout plan (the “Layout Plan”) of a room which they averred to be the scene of the Accident.  Later on 16 and 18 February 2022, the Plaintiff’s solicitors wrote to MTR asking for further information and an inspection of the room where the 2021 Photos were taken.  MTR, however, did not respond further to the Plaintiff’s request after the solicitors for the 1^st and 2^nd Defendants (“Deacons”) were confirmed to act on behalf MTR on 15 March 2022. The Plaintiff’s request for a site inspection was later rejected on 5 May 2022.

6.  By a Summons issued on 12 May 2022 (“the Summons”), the Plaintiff sought, pursuant to section 47B of the District Court Ordinance (Cap 336) and O.29, r.7A of the Rules of District Court (“RDC”), an order that the MTR do allow the Plaintiff, together with no more than two representatives of his solicitors, to enter the WKT for purpose of inspecting and taking photographs of the room where the Accident happened.  The Plaintiff in the Summons also sought (but was later withdrawn) that MTR do produce documents listed in the schedule thereto for inspection.

General Legal Principles

7.  Section 47B of the District Court Ordinance sets out as follows:

(3)  A party to proceedings in an action, in which a claim is made, may apply to the Court for an order against a person who is not a party to the proceedings for, and the Court may order -

(a)  the inspection, photographing, preservation, custody and detention of property which is not the property of, or in the possession of, a party to the proceedings but which is the subject-matter of the proceedings or as to which any question arises in the proceedings;

8.  Whereas O.29, r.7A (6) of the RDC states the following:

(6)  No such order shall be made if it appears to the Court -

(a)  that compliance with the order, if made, would result in the disclosure of information relating to a secret process, discovery or invention not in issue in the proceedings

9.  As set out in paragraph 29/8/5 of the Hong Kong Civil Procedure 2023, Vol. 1, under O.29, r.2(1), the court may “make an order in relation to property which is the subject-matter of the cause or matter, or as to which any question may arise therein.  The property must be bona fide the subject-matter of the action.[2]”

10.  With the above principles in mind, I turn to the present case.

Analyses of Factual Evidence

11.  In essence, the Plaintiff has the onus to prove that the inspection of the room where the Accident happened is a crucial issue arising out of the claim rather than a ‘fishing’ expedition as submitted by MTR, which would not assist the trial judge to resolve the disputes between the parties.  

12.  The Plaintiff in this present case alleged that the Defendants were, inter alia, negligent in allowing him to work in a condition in which he had no choice but to step on the Pipe that was fixed on the ground when descending from a ladder, thus causing him to slip and fall.  On the other hand, Ng, the only eye-witness of this case, claimed that he saw no pipes at all.  The discrepancy between these two witnesses gave rise to disputes in connection with the exact site of the Accident where the Plaintiff injured.       

13.  To complicate matters further, the location of the Accident that MTR has knowledge of was in fact imputed from an accident report and the Employees’ Compensation Form 2 (“Form 2”) submitted by the 2^nd Defendant.  The information supplied therein indicated that the Accident happened at 810A B1 GL K/L40-41 (Room F12P-02C), which was affirmed by Mr. Tang Pak Hung (“Tang”), who is the Chief Project Co-ordination Manager of MTR, being the ECS Plant Room situated on Level B1 of the WKT assigned with a unique room number F12P-02C[3] (“the Plant Room”).    

14.  The 2021 Photos taken by MTR were, regrettably, only some close up images of “pipe-like” objects and it was impossible to understand the layout or condition of the Plant Room from the photos. Likewise, the extract of the Layout Plan of the Plant Room itself could not indicate any interior fittings and its location on the Basement level.  I am therefore of the view that these pieces of information are not useful and do not enable the Court to draw any helpful insight. 

15.  Shortly after the Plaintiff took out the Summons, MTR arranged staff to take more photos of the Plant Room and provided the same to the Plaintiff’s solicitors on 10 June 2022[4] (the “2022 Photos”).  These ten odd photos which was taken on 18 May 2022 offered a wider viewpoint of the alleged Plant Room and showed a pipe that was fixed on the ground.  The Plaintiff’s solicitors however wrote back on 15 June 2022 and averred that the room shown in those photos did not assemble the room where he injured himself[5].  The Plaintiff thereafter in his 3^rd affirmation listed out 11 points[6] to support his belief that the Plant Room is not the Accident Room.

16.  From the factual evidence adduced by the parties as exhibited above, there are therefore three different rooms being alleged to be the site of the accident, namely the “Accident Room” described by the Plaintiff with ‘many pipes fixed on the floor’[7], the  機房where Ng found the Plaintiff with no pipes found on the ground and the “Plant Room” being identified by MTR as Room F12P-02C of the WKT with at least one pipe showing fixed on the ground.

Legal Analyses

17.  I reminded myself the Peruvian Guano test[8] which applies to determine whether the documents (in this case, the inspection of the property) sought from the non-party are relevant to an issue arising out of the claim that has been made.  I also borne in mind the need to ensure reasonable proportionality and procedural economy in the conduct of proceedings.  I must also consider whether disclosure is necessary in order to dispose fairly of the claim or to save costs.  As such, the Court took into account of the following considerations:

i.     How important is the information/ inspection to the issues;

ii.    Has the Plaintiff taken appropriate steps to obtain the information within the proceedings before seeking discovery from MTR;

iii.   Whether such inspection, if granted, will allow the Plaintiff to embark on a fishing expedition to corroborate his claim;

iv.   If inspection is necessary and proportionate, whether such inspection would undermine or infringe any public policy;

v.    Assuming that the court should ultimately decide to grant an order for inspection in the present case –

(a)  What should be the proper scope of the order; and

(b)  What, if any, restriction(s) regarding the inspection should be imposed on the Plaintiff.

How important is the information/ inspection to the issues

18.  As in many personal injuries actions, the exact location of where the accident occurred and its surrounding condition are often important issues in the proceedings.   The Plaintiff’s allegation that he stepped on the Pipe which caused him injuries demonstrated that the crux of this case depends, amongst other things, on the Court’s finding as to the existence of pipe(s) fixed on the ground at the time of the Accident. 

19.  Since Ng attended to the Plaintiff shortly after the Accident, there is no doubt that these two witnesses were both referring to the same room, thus what Ng referred as 機房 must be the Accident Room as averred by the Plaintiff.  The inconsistent descriptions of the room could only give rise to one possibility that one of them is not telling the whole truth.   

20.  While there is no basis whatsoever to doubt the good faith of MTR, the information provided by MTR can hardly be seen as conclusive.  As mentioned in paragraph 14, I have had the opportunity to study the 2021 Photos together with the Layout Plan but find them unhelpful towards allowing the trial judge to understand the surrounding condition of where the Accident happened.  While the 2022 Photos show a wider perspective of the Plant Room, I must bear in mind that the location of such Plant Room was premised on some information given by Ng, who was the only witness attended the 機房. Considering the affirmations of Plaintiff and Tang, I could not rule out the possibility that the “Accident Room”, the “機房” and/or the “Plant Room” referred by each party are entirely different rooms.  Rather than leaving this “he said, she said” puzzle for the trial judge to solve by assessing each witness’ veracity, the more direct and pragmatic way is for the Plaintiff to make inspection of the “Plant Room” and the “Accident Room” that he averred he could still locate.    

21.  Ms. Lui who acted for MTR, argued that the Form 2, which contained the code of the Plant Room has been in the Plaintiff’s possession as early as he issued the Letter before Action in October 2019.  The Plaintiff, however, never raised queries as to the location of the Accident Room until after the parties exchanged their witness statements.  The Court should therefore refuse to entertain his late application.  With respect to Counsel, I disagree.  First, the Form 2 was completed by the 2^nd Defendant and secondly, the location of the Accident was described in a form of code that no laymen would be able to decipher.  Thirdly, the Plaintiff was put to strict proof of the existence of the Pipe and Ng’s denial of the existence of any pipes in the Accident Room did not come to light until the exchange of witness statements. As such, it is perfectly reasonable for the Plaintiff to start raising queries as to the exact location of the Accident at times after he gained insights of the defence case.

22.  Hence, the interior fitting of the Accident Room, especially as to the existence or non-existence of the Pipe, is the crucial subject matter of this personal injuries proceedings and inspection is necessary in order to dispose fairly of this important issue of the claim before trial and to save costs and time.

Has the Plaintiff taken appropriate steps to obtain the information within the proceedings before seeking discovery from MTR     

23.  With the benefit of reading all correspondence amongst the parties, including those queries made between the Plaintiff himself and MTR, the Court forms the view that the request for inspection was made after the Plaintiff exhausted all other reasonable ways to resolve the dispute as to the location of the Accident Room For example, the Plaintiff’s reasonable request for photos showing the Plant Room in its entirety for easy identification was denied by MTR.

24.  I must also emphasise that the request for an inspection of the Accident Room, though being criticized as being late, was not without cause.   It could be seen that correspondence were exchanged between the Plaintiff and MTR over a period of months, attempting to identify the Accident Room and its interior fitting, followed by another few months of ‘stay’ while Deacons waited for confirmation of instruction from MTR.  After receiving MTR’s formal rejection of his request for an inspection, the Plaintiff issued the Summons expeditiously about one week thereafter. 

25.  I have no doubt that the Plaintiff took every possible step to obtain information from the non-party before making an application for discovery.

Whether such inspection, if granted, will allow the Plaintiff to embark on a fishing expedition to corroborate his claim?

26.  Tang gave evidence that the Plaintiff was merely asking for inspection of the Plant Room back in February 2022 but the scope of inspection was widened in April 2022 “allowing the Plaintiff to identify the room where he was injured”. Tang said the Plaintiff did not identify the exact room in the WKT he wishes to inspect and since there are hundreds of plant rooms within the WKT, which included rooms that are under the control of various departments of the HKSAR Government or the mainland authority, to conduct the site inspection at the magnitude as requested by the Plaintiff is fishing, speculative and disproportionate. 

27.  Ms. Lui in her submissions contended that the Plaintiff has no evidence to suggest that the Plant Room was not the only room in the basement of the WKT with pipes installed and thus he should take such sworn evidence by Tang as true.  In addition, there would be no probative value even inspection of the Plant Room is allowed, since MTR has already provided photos of the Plant Room to the Plaintiff.  She commented that the Plaintiff was simply dissatisfied that all photos and the Accident Report/ Form 2 supplied by MTR do not corroborate his claim.  Any inspection would only appear to be a quest to fish for evidence until he could find something to help him uphold his claim. 

28.  The Court, with much respect, disagrees with Ms. Lui’s argument.  As explained earlier, Tang’s sworn evidence was premised on information supplied by the Defendants and their witnesses, who are obviously holding an opposing view to the Plaintiff.  I do not see why the Court should inhibit the Plaintiff at this stage to gather evidence in a reasonable manner for advancing his own case.    

29.  So much so that Tang was trying to emphasise on the unreasonable magnitude of the Plaintiff’s request by explaining the inconvenience it would cause if hundreds of doors in the WKT were opened for his inspection, the Court is of the view that the true scope of inspection requested by the Plaintiff has been misconstrued and exaggerated by MTR.

30.  One must study the conversations between the Plaintiff and MTR back from August 2021 to understand why there would be a so-called widened scope of inspection and thus to construe the real objective of the inspection the Plaintiff wishes to make.

31.  The Plaintiff himself contacted MTR in August 2021 via email simply asking for their confirmation as to the existence of a pipe with an approximate 36-inch diameter near the ground in the Environmental Control System Engineering Room.[9]  Since MTR refused to provide details, the Plaintiff, quite remarkably, built a model mock-up of the layout of the Accident Room (the “Model”) and asked the MTR to confirm if his Model reflected the actual condition of the Plant Room on their record.  This Model, despite being homemade and nothing sophisticated, showed precise details of the interior setting of the Accident Room, which included not only the location of the Pipe, but also exit doors, pillars, electrical conduit, platforms, ladder etc.  And in fact, as confirmed by Tang, this Model “generally matches the actual layout of the Plant Room”[10].

32.  The Model therefore demonstrated that the Plaintiff has a good recollection of the layout of the Accident Room and this must be borne in mind vis-à-vis his doubts about the location reflected in those 2022 Photos.  He substantiated his understanding of the layout of the Accident Room by spotting the missing “3^rd Door”, an alleged hole and the bulging wall from those 2022 Photos.  He further averred that the 2022 Photos did not depict the rectangular shape of the Accident Room.  All these queries, as opposed being speculative, are justified when considering the Model the Plaintiff built was in a rectangular shape consisting of the alleged three doors, a hole and bulging wall which were agreed by MTR.  Although I agree with Ms. Lui that the setting of the Plant Room in 2022 could be different to the time of the Accident, I believe the chances of architectural structure (i.e. the shape of the room) or interior fixtures such as doors and piping having been altered between 2018 and 2022 is not likely or probable.  As such, I agree that every doubt the Plaintiff raised in his 3^rd affirmation is valid and reasonable, although it does not necessarily mean that the Plant Room must be a different room from the Accident Room.  One of the simple reasons why the Plaintiff could not agree with the 2022 Photos is because those photos did not actually cover the entirety of the Photo Room, which was admitted by Ms. Lui.

33.  In light of the above, I believe those 2022 Photos could only be relevant and helpful if the trial court has the opportunity to understand the layout of the entire room and it would only be fair to the Plaintiff if he is offered the opportunity to locate the exact spot where he fell from the ladder. 

34.  Tang, in his affirmation, also contended that there are more than 900 plant rooms within the WKT and it is impractical and/or impossible to open all doors for the Plaintiff’s inspection.  With due respect, this is an exaggerated concern and the Plaintiff’s scope of inspection has been completely misconstrued.  First, it was never in dispute between the parties that the Accident happened in an ECS Room on Basement 1 level.  Secondly, the Plaintiff in his 2^nd affirmation averred that “I could remember clearly the location of the accident.  I verily believe that if I am allowed to enter the Terminus I would be able to identify the Room and confirm if it is indeed the room which the Defendants and MTR referred to as being the “ECS Plant Room” in Terminus.[11]” and this was neither the only nor first time he explained to MTR his ability to identify the Accident Room[12]. In light of the above, it never appeared to be the Plaintiff’s intention to expect MTR to have every door opened for his inspection but all he wanted is to ascertain if the Plant Room is the same room as the Accident Room which he could locate.  As such, given the Plaintiff’s ability in recalling small and particular details of the Accident Room and to identify its location, I am not convinced that an inspection, if granted, will become a quest for him to fish for corroborating evidence. 

If inspection is necessary and proportionate, whether such inspection would undermine or infringe any public policy?

35.  Tang, on behalf of MTR, averred that since there are not less than 900 plant rooms within the WKT and if inspection is allowed for the Plaintiff, it may open the floodgates to more similar requests from the public.  Tang also explained how various rooms or areas within the WKT are being prohibited areas that MTR may not have the sole power to grant such access.  

36.  Naturally every case is different and every set of fact must be regarded by the Court de novo. As explained, the Court is guided by certain principles when considering the requested inspection, which included the necessity of discovery and proportionality.  There is no evidence from MTR that the Plant Room or any other rooms on the Basement 1 level is prohibited or under the control of other authorities.   In any event, the scope of inspection, if granted, will be confined to areas that are under the control of MTR and any places that are within the control of other authorities will not be subjected to the discovery order.   

37.  Bearing in mind that the magnitude of such inspection is nothing close to what MTR suggested but potentially just the Plant Room and the Accident Room (which could well be the same room) and balancing all the relevant interests in the circumstances of this case, I am of the view that an order of access, with a well-defined scope of inspection, would not undermine or infringe any public policy.

CONCLUSION

38.  Having considered all the above issues, it is the Court’s view that the location of the Accident and the interior fittings of the Accident Room are necessary issues to be considered in the trial. Therefore, it is desirable, before the trial, to clarify whether all parties in the proceedings are actually referring to the same room.  The Plaintiff provided genuine reasons why he believed that the Accident Room could not be the Plant Room (which may well be the 機房 Ng referred to).    Guided by what is fair and just in the circumstances, I see no reason why an inspection should not be granted to promote or ensure a fair contest within the trial.

39.  I now turn to the last issue which is to give the order for inspection a more definitive scope.  As explained in the foregoing paragraphs, the only possible room(s) that should be inspected are the Accident Room that the Plaintiff said he could identify and the Plant Room assigned with a unique room number F12P-02C, both on Basement level 1 of the WKT, which could well turn out to be the same room.  I therefore grant the order as follows:

1.  MTR do within 28 days from the date of this Order make arrangement with the solicitors for the Plaintiff to allow the Plaintiff to enter the West Kowloon Terminus for purpose of inspecting (a) the plant room assigned with Code 810A B1 GL K/L40-41 (Room F12P-02C) (“the Plant Room”) and (b) the one room he identified in the West Kowloon Terminus where the Accident on 18 January 2018 occurred (“the Room”);

2.  In identifying and entering the Room, the Plaintiff should not trespass, enter or remain on any places which is not under the control of MTR;

3.  For the purpose of the abovementioned inspection, MTR shall permit the Plaintiff to:

a.  be accompanied by not more than two representatives of the Plaintiff’s solicitors; and

b.  take photographs of the Plant Room and the Room; and

4.  There be liberty to apply.

Ex parte Application

40.  The Plaintiff wrote to the Court, in the form of a letter dated 20 January 2023 to request that he be allowed to file a further supplemental affirmation to provide particulars of the route to enter the Accident Room (the “Ex parte Application”).  Not only is such an application procedurally inappropriate, it is superfluous.  The Plaintiff, in his 3^rd affirmation, has already given details as to his recollection of entering the Accident Room, so the intended further affirmation would not assist him in this Application and is unnecessary. The Plaintiff’s request is therefore denied.

Costs

41.  MTR relies on section 47C of the District Court Ordinance and contends that the Plaintiff should pay costs even if the Court is to grant order for inspection.  Section 47C provides that:

          “The Court shall award costs of and incidental to the proceedings to the person against whom an order is sought under sections 47A and 47B unless the Court otherwise directs.”

42.  Mr. Tommy Lo, Counsel for the Plaintiff argues that there ought to be costs implication for MTR since it engaged the same solicitors who act for the Defendants, as such they should be seen as “one camp of litigants”. 

43.  The Court bears in mind that non-party in general has no duty to assist the Plaintiff and has every right to deny his right to enter upon its premises.     The Court also keeps in mind that the root of this Summons is due to first, the dispute as to whether pipe(s) existed in the Accident Room at the time of the Accident and secondly, the limited perspectives showing from the 2022 Photos. 

44.  This Court wonders whether the Summons would even have been necessary if MTR had provided a set of photos that showed the entirety of the Plant Room.  After all, they provided photos of some parts of the Plant Room to the Plaintiff and what harm could have been caused by providing more comprehensive photos allowing him to gain the whole view of the Plant Room.   

45.  In this circumstances, I make a costs order nisi that the costs of the Summons, besides the Ex parte Application made on 20 January 2023 be paid by the Plaintiff to the MTR to be taxed if not agreed on a common fund basis, with certificate for counsel.  The Plaintiff’s own costs to be taxed in accordance with the Legal Aid Regulations.  Such sum payable will form part of the costs in the cause in the main action.  The costs incurred and incidental to the Ex parte Application will be paid by the Plaintiff to MTR.