Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Ho Kwok Kei v A.s. Watson & Co Ltd And Others

Judgment Cited authorities 10 Cited in 1 Precedent Map Related
Vincent
Judgment Date27 June 2019
Neutral Citation[2019] HKCFI 1618
Judgement NumberHCPI325/2016
Citation[2019] 3 HKLRD 592
Year2019
Subject MatterPersonal Injuries Action
CourtCourt of First Instance (Hong Kong)
HCPI325/2016 HO KWOK KEI v. A.S. WATSON & CO LTD AND OTHERS

HCPI 325/2016

[2019] HKCFI 1618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 325 OF 2016

____________

BETWEEN

HO KWOK KEI Plaintiff
and
A.S. WATSON & COMPANY, LIMITED 1st Defendant
A.S. WATSON GROUP (HK) LIMITED 2nd Defendant
(discontinued)
CHUNG HING TRANSPORTATION LIMITED 3rd Defendant

____________

Before: Hon G Lam J in Court

Dates of Hearing: 23-26 October and 5 November 2018

Date of Judgment: 27 June 2019

__________________

J U D G M E N T

__________________


A. Introduction

1. In this action the plaintiff claims damages for personal injuries arising from an alleged accident at work on 3 December 2010.

2. The plaintiff was born on 19 December 1963. In 2010 he was working for A.S. Watson & Company, Limited, the 1st defendant, as the Store Manager of the “Park’n Shop” supermarket operated by the 1st defendant at 21 Yin Hing Street, San Po Kong, Kowloon (“the Store”).

3. The delivery of goods from the 1st defendant’s warehouses — also called distribution centres — to various “Park’n Shop” supermarkets, including the Store, was arranged by a related company, A.S. Watson Group (HK) Limited (“ASWGL”). ASWGL in turn engaged transport contractors to make such delivery. At the material time, there were two such contractors engaged by ASWGL, one of which was Chung Hing Transportation Limited, the 3rd defendant. The contract between ASWGL and the 3rd defendant at the time was embodied in a written agreement dated 15 March 2010 called “Service Agreement for Provision of Transportation Services” (“Service Agreement”), the terms of which are set out in §61 below. The 3rd defendant used both trucks provided by ASWGL and its own trucks to perform the Service Agreement.

4. On 3 December 2010, Mr Chik Poon Lee (“Mr Chik”), an employee of the 3rd defendant, drove a medium goods vehicle (“Lorry”) owned by ASWGL and provided to the 3rd defendant for use under the Service Agreement, to deliver goods from the Shatin distribution centre to the Store. The Lorry had an enclosed goods compartment and a hydraulic tailgate loading platform (“Tailgate”). According to the plaintiff, he helped unload the goods from the Lorry and while he was standing on the Tailgate next to a pallet jack laden with goods, the Tailgate suddenly tilted downwards. The goods and the pallet jack were displaced and crushed his right foot.

5. The plaintiff claims that the accident was caused by the negligence of Mr Chik, for which the 3rd defendant is vicariously liable. He claims that the 1st defendant breached its own duty as employer and occupier and relevant statutory duties, and is also vicariously liable for the negligence of Mr Chik because the activity undertaken by the 3rd defendant was an integral part of the 1st defendant’s business. ASWGL was initially sued as the 2nd defendant but the action was discontinued as against it at an early stage.

6. The 3rd defendant disputes the accident as alleged by the plaintiff. The 1st and 3rd defendants dispute liability and aver that if they are liable, the plaintiff was contributorily negligent. In addition, the 1st defendant claims contribution from the 3rd defendant.

B. The issues

7. Based on the contentions of the parties, the following broad issues arise, which will be discussed in turn below:

(1) Did the accident take place as alleged by the plaintiff? Was the plaintiff injured in the way alleged?

(2) Was Mr Chik negligent and did his negligence cause the accident?

(3) Did the 1st defendant breach its own duty to the plaintiff?

(4) Is the 1st defendant vicariously liable for the negligence of Mr Chik?

(5) Was the plaintiff contributorily negligent?

(6) How should liability between the 1st defendant and the 3rd defendant apportioned? Is the 1st defendant entitled to contribution or indemnity from the 3rd defendant?

(7) What is the quantum of damages payable to the plaintiff?

C. The accident

C1. The pleas and the factual evidence

8. According to the plaintiff, deliveries were made to the Store on 3 to 4 days every week. There was a worker in the Store responsible for receiving deliveries but if a lorry arrived when that worker was occupied, the plaintiff would take up the responsibility for unloading, which he had to do about 5 to 6 times a month. On the day in question, there were two deliveries, both of which were unloaded by the plaintiff. At about 11:30 am the Lorry arrived for the second delivery of the day. It is common ground that it was parked on the roadside near the Store.

9. The plaintiff’s pleaded case[1] is that he used a manual pallet jack taken from the Store to move the goods on pallets from the goods compartment of the Lorry to the Tailgate and then to the Store. On one of these trips, the plaintiff had moved the loaded pallet jack onto the Tailgate and was standing on the edge of the Tailgate next to the pallet of goods. While the Tailgate was being lowered, the driver pressed the wrong button on the controls and the Tailgate suddenly tilted forward causing the pallet jack and a pallet of goods to roll forward over and trapping the plaintiff’s right foot, as a result of which the plaintiff suffered injury to his right big toe and second toe. The plaintiff shouted to the driver who then lowered the Tailgate to the ground, levelling it to release the plaintiff’s right foot from the pallet jack. In addition, the plaintiff pleaded that the loaded pallet was “a lot heavier than the usual load”.[2]

10. The 1st defendant admits that Mr Chik was operating the controls of the Tailgate and pressed the wrong button.[3]

11. The 3rd defendant disputes the accident and denies that Mr Chik pressed the wrong button or caused the Tailgate to tilt forward. It denies that Mr Chik had ever heard at the time that there was the alleged or any accident, and avers that it was first informed of the alleged accident when it received a letter dated 27 September 2013 from the 1st defendant’s solicitors.

12. The pallets used by the 1st defendant were generally 1.2m by 1.2m or 1m by 1m in size. The cargo hold of the Lorry was about 2.4m wide and 6.5m long so that 2 rows of 6 pallets could be placed with it at the maximum. The Tailgate had approximately the same width as the Lorry itself.

13. In his statement (made in August 2015), the plaintiff said that the pallet of goods he was handling at the time was about 4 feet high, and contained cartons of different sizes. After he pulled the pallet jack to the Tailgate, with the prongs facing the goods compartment of the Lorry, he signalled to the driver to lower the Tailgate. Immediately upon being lowered, the Tailgate slanted downwards. The jack moved and pressed his right foot. His foot was trapped and he shouted in great pain. The driver noticed there was an accident, levelled the Tailgate, lowered it to the ground and raised the goods to free the plaintiff’s foot. The plaintiff sat on the roadside, took off his shoe, and saw that his right big toe and second toe were bruised and bleeding and looked squashed. The plaintiff said the driver was very worried and apologised to him, and recorded the accident in the Lorry’s logbook, asking the plaintiff to describe the accident there which he did in a few words. At that time a clerk of the Store came out, saw the plaintiff’s injury, and took a few photographs. That colleague helped the plaintiff into the Store and made a report by telephone to the district manager, Mr Law, who told the plaintiff to see a doctor and report the incident as injury at work.

14. The plaintiff said he went to see Dr Kong for treatment, and although he was given sick leave, he continued to work in the Store because of lack of manpower. Meanwhile he consulted Dr Kong and another clinic for right foot pain. This situation continued until July 2011 and as he felt his condition had not improved but had deteriorated, he asked the district manager Mr Law to report the incident.

15. During cross-examination the plaintiff said that after he had pulled the laden jack to the Tailgate, it was placed at the centre of the Tailgate. He turned the jack handle to a right angle to the line of the prongs — a step he was accustomed to take to prevent the jack from sliding or moving. He did not release the hydraulic pressure of the jack to lower the pallet on to the Tailgate. He said no one had taught him to do so but accepted that even without being taught, anyone would have seen that it would be safer to do so. He said after placing the goods there, he stood on the left side of the goods. He accepted that the driver should be standing near the hinge of the Tailgate rather than near its end, and that in this respect the diagram at paragraph 11 of the statement was incorrect. He said it was the pallet, not the jack, that pressed on his foot, and that in this respect paragraph 12 of his statement was not accurate. He said the colleague who came out and saw him was Ms Tse Yee Yuk, not a Ms Cheung as stated in paragraph 13 of his statement. The plaintiff said that he had asked if Ms Tse could be his witness but she declined.

16. The plaintiff was also cross-examined in relation to an “Accident / Incident Investigation Report” of the 1st defendant he filled in on 11 July 2011 (“Incident Report”). The accident was described there as follows:

「 當我落沙田倉時，準備將起重車（唧車）放鬆，但司機突然按制降尾板，使尾板傾斜，同一時間，我(?)在降(?)唧車，結果被卡住，右腳趾被壓住，我當時想把腳抽出來，但不成功，最後沙田車司機放低尾板，升起部唧車，把我放出來。」

In English translation:

“ When I was unloading [the goods from] the Shatin warehouse, (I) was going to release the forklift truck (jack). However, the driver suddenly pressed (a) button to lower the tailgate, causing the tailgate to tilt. Meanwhile, I was lowering (?) the jack and was...

To continue reading

Request your trial
1 cases
  • Ho Kwok Kei v A.s. Watson & Co, Ltd And Others
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 30 December 2019
    ...Co, assigned by Director of Legal Aid, for the Plaintiff Written submissions by Fairbairn Catley Low & Kong, for the 1st Defendant [1] [2019] HKCFI 1618. [2] See Etratech Asia-Pacific Ltd v Leader Printed Circuit Boards Ltd [2013] 4 HKC 282, paras 19‑23. [3] Paras 43 and 49 of the ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT