Chen Yusheng v Wo Ming Engineering Ltd And Another

CourtHigh Court (Hong Kong)
Judgment Date03 June 2020
Neutral Citation[2020] HKCFI 1000
Judgement NumberHCPI1420/2016
Subject MatterPersonal Injuries Action
HCPI1420/2016 CHEN YUSHENG v. WO MING ENGINEERING LTD AND ANOTHER

HCPI 1420/2016

[2020] HKCFI 1000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 1420 OF 2016

________________________

BETWEEN
CHEN YUSHENG Plaintiff
and
WO MING ENGINEERING LIMITED 1st Defendant
CHUN WO CONSTRUCTION AND ENGINEERING COMPANY LIMITED, CHINA RAILWAY GROUP LIMITED, AND 中铁大桥局股份有限公司trading as CHUN WO-CRGL-MBEC JOINT VENTURE
2nd Defendant

________________________

Before : Hon Marlene Ng J in Chambers
Date of Hearing : 22 May 2020
Date of Handing Down Decision : 3 June 2020

_____________

DECISION

_____________

I. BACKGROUND

1. The plaintiff (“P”) was employed by the 1st defendant (“D1”). D1 was a subcontractor of the 2nd defendant (“D2”) who was the principal contractor at the construction site located at the eastbound bridge deck at Island Eastern Corridor at Fortress Hill, Hong Kong (“Site”). P claimed he was employed as a drill operator, but D1 and D2 (collectively, “Ds”) claimed he was employed as a casual worker.

2. P claimed that on 17 April 2015 he suffered a work injury in the course of employment at the Site (“Accident”), and thereby suffered personal injury, loss and damages. P claimed the Accident was caused by the negligence, breach of employment and/or breach of statutory duties on the part of D1 and/or D2.

3. P was legally aided. On 18 July 2015, P by his assigned solicitors (“1st Firm”) commenced DCEC1546/2015 (“EC Action”) against Ds for employees’ compensation in respect of the Accident. Paragraph 3(3) of the Application in the EC Action (“Application”) described the circumstances of the Accident in the same terms as paragraphs 3-4 of the Statement of Claim (“SoC”) in the present action set out in paragraph 5 below.

4. In a pre-action letter dated 31 July 2015 by the 1st Firm on behalf of P to D2, the circumstances of the Accident were also described in the same terms.

5. On 18 November 2015, P by the 1st Firm commenced the present action in the District Court as DCPI2531/2015. In paragraphs 4-5 of the English SoC (verified by P upon translation by a solicitor of the 1st Firm) filed on the same date, P pleaded the circumstances of the Accident as follows:

“4. At or about 11:00am on 17 April 2015, [P] was instructed by [D1] to work at the Site. [P] was, in the course of his employment, instructed by [D1] to install steel railings on the bridge deck together with 3 other co-workers.

5. The bottom of each steel railing was attached to a piece of approximately 250 kg square-shaped metal plate (‘Metal Plate’) which in turn served as an anchor to stabilize the position of the steel railings (‘the Steel Railings’) on the bridge deck. To install the Steel Railings, [P] and the 3 co-workers had to load the Metal Plate into a pit (‘the Pit’) on the bridge deck. To do so, [P] and the 3 other co-workers, each held the Metal Plate by its corner with a crowbar, and transferred the Metal into the Pit. When [P] and the 3 co-workers knelt down to adjust the sides of the Metal Plate to fit into the Pit, the 3 co-workers suddenly unloaded the Metal Plate without first notifying [P]. As a result, [P] was suddenly pulled forward by the force of the falling Metal Plate, sprained his back and suffered personal injuries (‘the Accident’).” (my emphasis)

6. On 24 September 2019, P filed a summons (“Summons”) for the following reliefs with consequential directions: (a) to re-amend the writ of summons (“WoS”) by correcting the reference to the 1st and 3rd defendants in the endorsement of claim (“EoS”) to the 1st and 2nd defendants, and (b) to amend paragraph 5 of the SoC to replace the words “knelt down” with the word “squatted” in the pleas as to the circumstances of the Accident. According to the Summons, P was prepared to pay costs of and occasioned by the application to Ds to be taxed if not agreed.

7. The proposed re-amendment to the WoS/EoS in (a) above was uncontroversial, and Ds had no objection to the same. The real debate concerned the proposed amendment to the SoC in (b) above.

8. On 24 September and 4 December 2019, P filed his 1st and 2nd affirmations in support (“P 1st and 2nd Affs”). On 6 November 2019 and 15 May 2020, Ds filed the 1st and 2nd affirmations of their solicitor Cheng Sau Yi (“Ms Cheng”) in opposition (“Cheng 1st and 2nd Affs”).

II. PROCEDURAL HISTORY

9. On 26 January 2016, Ds filed their Defence to dispute liability on inter alia the following basis: (a) Ds put P to proof as to the occurrence and circumstances of the Accident and averred inter alia that (i) P and the co-workers were instructed to adopt a standing position at the material time, (ii) the workers should slowly slide the Metal Plate (which was not to be lifted up entirely) into the Pit, (iii) P and the co-workers completed the assigned task of moving 5 Metal Plates into the Pit uneventfully, (iv) a crane lorry was available for lifting heavy objects if considered necessary and (v) the task in question was a simple and non-complicated task, and (b) Ds further or alternatively averred that, if, which was denied, P had met with an accident which happened in the manner as pleaded, the same was caused by and/or contributed to by P’s own negligence, including P kneeling down to complete the task in question.

10. On 26 May 2016, P filed his Chinese witness statement (“P 1st WS”), which stated inter alia that:

“12. 在安置該節攔河期間, 老闆娘著我與另外3名同事每人站在金屬鐵片的4角 (被稱‘金屬鐵片’), 每人手持鐵筆合力把金屬鐵片抬起, 就好入坑及鄰近已安裝好的欄河位置把金屬鐵片放入坑內 ……。當各人蹲在坑前就位時, 其餘3名同事在沒有任何提示或預告下突然把金屬鐵片放入坑內, 結果該金屬鐵片落坑的衝力把我整個人拉前, 我因此挫傷了腰部。” (my emphasis)

11. On 15 June 2016, Ds filed the witness statements of Pang Ching (“Pang”) (“Pang 1st WS”) and Leung Ho Kwong (“HKLeung”) (“HKLeung 1st WS”), which commonly stated inter alia as follows:

“據知, 該意外發生於2015年4月17日上午約11時, 原告人正於該地盤與另外3名工人安裝欄杆立柱。每支立柱底部均連著一塊鐵片, 以固定立柱位置。安裝立柱時, 工人們須把立柱放置於橋面的坑位。原告人與另外3名工人各方用撬棍提起鐵片的一角, 把立柱移到橋面的坑位。原告人於事後聲稱他跪下跟工人們一起調整鐵片位置時扭傷背部。” (paragraph 22 of Pang 1st WS and paragraph 9 of the HKLeung 1st WS)

“據知, 原告人是被指示保持站立姿勢去完成這個工序, 而不是跪下。而且應該把鐵片慢慢移到橋面的坑位, 而不是把立柱舉起。” (paragraph 23 of the Pang 1st WS)

12. On 27 November 2016, P filed his Revised Statement of Damages (“RSoD”) claiming damages in excess of $4,000,000. On 16 December 2016, Ds filed their Answer thereto. By the order of Master Rita So dated 8 December 2016, the whole proceedings in DCPI2531/2015 were transferred to the Court of First Instance.

13. Pursuant to the order of Master Roy Yu dated 22 February 2017, leave was granted for P to serve his supplemental witness statement dated 10 January 2017, and for Ds to serve supplemental witness statement(s) in response. On 12 April 2017, Ds filed Pang’s and HKLeung’s supplemental witness statements.

14. On 8 June 2017, Master Roy Yu granted leave for P to set the present action down for trial in the fixture list. The present action was scheduled to be tried on 17 July 2018 with 4 days reserved.

15. On 16 November 2017, the Director of legal Aid (“DLA”) filed Notice of Re-assignment of Solicitor, and assigned another firm of solicitors (“2nd Firm”) to represent P in the present action.

16. At the pre-trial review (“PTR”) hearing on 18 April 2018, Au-Yeung J granted leave for Ds to amend their Defence, and for P to amend the WoS and RSoD. On 26 April 2018, Ds filed their Amended Defence, which amendments were not material to the issues raised by the Summons. On 9 May 2018, P filed his Reply to the Amended Defence (“Reply”) in which P pleaded inter alia as follows:

“4. Paragraph 7(a) of the Amended Defence is specifically denied. [P] further avers that even if there were instructions for him to adopt a standing position, which is denied, it was not practical for him and his co-workers to adopt a standing position throughout the whole process in loading the Metal as they had to adjust the Metal according to the Pit on the bridge deck.

5. Paragraph 7(b) is specifically denied. [P] further avers that the Metal must be lifted up at some point such that it could be perfectly aligned with the Pit.”

17. On 26 April 2018, P filed his Amended WoS and Amended RSoD. On 23 May 2018, Ds filed their revised answer thereto.

18. On 29 May 2018, the DLA filed Notice of Discharge of Legal Aid in respect of P in the present action. By the order dated 8 June 2018, Chow J directed that unless P raised objection within 5 days thereof, the trial scheduled to be held on 17-20 July 2018 be vacated, and fresh dates for the pre-trial review hearing and the trial be re-fixed within 21 days of the determination of P’s legal aid appeal against the discharge of his legal aid certificate. On 4 October 2018, the DLA filed Memorandum of Notification of an Application for Legal Aid by P in the present action. On 16 November 2018, Au-Yeung J directed the legal aid stay to be lifted, and granted liberty by either party to restore the present action for checklist review (“CLR”) hearing. On 10 December 2018, the DLA filed Memorandum of Notification that a Party had been Refused Legal Aid in respect of P’s application for Legal Aid.

19. On 18 February 2019, I granted an order by consent that the CLR hearing be adjourned to be heard on 21 June 2019. On 30 May 2019, the DLA filed legal aid certificate in respect of P. On 21 June 2019, I granted inter alia the following orders together with other case management directions concerning intended supplemental orthopaedic expert report: (a) leave for P to serve P’s 2nd supplemental witness statement as per the draft annexed to P’s summons filed on 19 June 2019, and (b) leave for Ds to serve their supplemental or other witness statement(s) in reply.

20. Pursuant to such order, P served his 2nd supplemental witness statement dated 28 June 2019 (“P 3rd WS”), and Ds served...

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