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Pang Kwok Lam v Schneider Electric Asia Pacific Ltd

Judgment Cited authorities 26 Cited in Precedent Map Related
Vincent
Judgment Date05 January 2011
Year2011
Judgement NumberHCPI90/2010
Subject MatterPersonal Injuries Action
CourtHigh Court (Hong Kong)
HCPI90/2010 PANG KWOK LAM v. SCHNEIDER ELECTRIC ASIA PACIFIC LTD

HCPI 90/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 90 OF 2010

_________________________

BETWEEN

PANG KWOK LAM Plaintiff
And
SCHNEIDER ELECTRIC
ASIA PACIFIC LIMITED		 Defendant

_________________________

Coram : Before Master Marlene Ng in Chambers (open to the public)

Date of Hearing : 15 December 2010

Date of Handing Down Decision : 5 January 2011

______________

DECISION

______________

1. The Plaintiff was employed by the Defendant to work as a storeman at its warehouse in Kwai Chung (“Warehouse”).

I. PLAINTIFF’S CLAIM

2. The Plaintiff claims that on 8 March 2007 whilst working under the Defendant’s instructions at the Warehouse he unloaded a carton of electronic/electric equipment (“Goods”) that weighed about 22 kg (“Carton”) when he was suddenly knocked down by a trolley/cart which was pushed or pulled by the Defendant’s servant and/or agent, ie a female employee/worker called “Ah Ching”. He fell backwards to the ground and was hit by the Carton (“Accident”), and as a result he suffered personal injuries.

3. The Plaintiff further claims that the Accident was caused by breach of implied terms of his contract of employment with the Defendant and/or negligence and breach of statutory duty on the part of the Defendant, its servants and/or agents (for which the Defendant is vicariously liable).

4. On 2 March 2010, the Plaintiff commenced the present proceedings to claim against the Defendant for damages for personal injuries and/or other loss and damages as a result of the Accident.

II. DEFENDANT’S DEFENCE

5. On 23 June 2010, the Defendant filed its Defence denying liability. The Defendant does not admit the circumstances of the Accident as alleged by the Plaintiff, and claims that even if it owed any duty of care to the Plaintiff (which is denied), it had discharged such duty by taking all reasonable steps.

6. Further or alternatively, the Defendant avers that the full name of “Ah Ching” is Wong Suk Ching who was an employee of Beyond Logistics Co (“BLC”) being the Defendant’s independent contractor that provided pick and pack service at the Warehouse, so even if the Accident happened as alleged by the Plaintiff (which the Defendant denies), it was caused wholly by the negligence on the part of BLC, its servants, representatives and/or employees and/or by Wong Suk Ching for whom BLC is vicariously liable. The Defendant further claims it had satisfied itself that BLC was competent to perform the pick and pack service and had properly performed such service.

7. Still further or alternatively, if the Accident happened as alleged by the Plaintiff (which is denied), the Defendant avers that the Accident was caused wholly or contributed to by the negligence of the Plaintiff.

8. According to the Answers to Requests for Further and Better Particulars (“FBP”) of the Defence filed on 20 August 2010 and dated 7 September 2010 respectively (“1st and 2nd FBP Answers”), the Defendant avers that:

(a) under its agreement in writing with BLC for pick and pack service (which agreement had been lost without copy), BLC was required to arrange for labour to perform pick and pack as well as quality inspection services at the Warehouse;

(b) BLC assigned “Ah Ching” to work at the Warehouse to perform such pick and pack and quality inspection services;

(c) “Ah Ching” is in fact Wong Suk Ching who was commonly referred to as “Ah Ching” by the Defendant’s staff (including Mr Sunny Hui (“Hui”) and Mr Chris Chan (“Chan”)) when she worked at the Warehouse, and Hui saw her at the place of the Accident (“Scene”) shortly after the Accident occurred;

(d) the Defendant had satisfied itself that BLC was competent to carry out pick and pack service and had properly performed such service by having its staff (including Chan) supervise such service from time to time.

9. By their letter dated 14 September 2010 to the Defendant’s solicitors Messrs Leung & Lau (“LL”), the Plaintiff’s solicitors Messrs Ricky Li & Co (“RLC”) complained inter alia that the 1st and 2nd FBP Answers failed to exhaustively identify the Defendant’s staff (other than Hui and Chan) who commonly referred to Wong Suk Ching as “Ah Ching” and the Defendant’s staff (other than Chan) who supervised BLC’s service. By a further letter dated 28 September 2010 to LL, RLC claimed the 1st and 2nd FBP Answers were evasive and urged the Defendant to respond to the further requests. But to date the Plaintiff has not issued any summons to compel the Defendant to furnish answers to such further requests.

III. SUMMONS

10. On 30 July 2010, the Plaintiff issued a summons (“Summons”) seeking the following reliefs:

(a) leave to join Law Yuen Ming (“Law”) formerly trading as BLC as a further defendant on the basis that the relevant limitation period has not expired or alternatively that section 27 of the Limitation Ordinance Cap. 347 (“Ordinance”) be disapplied pursuant to section 30 thereof;

(b) leave to amend the Writ of Summons (to describe the Defendant and BLC respectively as the 1st and 2nd Defendants) as per the draft annexed to the Summons with consequential directions for service thereof;

(c) leave to amend the Statement of Claim and the Defence generally with consequential directions for service of such amended pleadings.

11. The Plaintiff has filed the affirmation of his solicitor Pang Wing Hong dated 4 August 2010 and his own affirmation dated 9 November 2010 in support of the Summons. BLC has filed the affirmation of Law’s husband Ng Suen Chiu (“Ng”) dated 11 October 2010 in opposition.

12. On 20 September 2010, upon the Defendant supporting the Summons and electing not to file any affirmation thereto, I excused the Defendant from attending the substantive hearing of the Summons on 15 December 2010.

IV. BACKGROUND – EMPLOYEES’ COMPENSATION PROCEEDINGS

13. By a Notice of Accident dated 20 March 2007 signed by the Plaintiff and submitted to the Labour Department (“Notice of Accident”), the Plaintiff describes the Accident as “搬運貨物時，失去平衡向後跌倒而被貨物壓傷”.

14. In the Form 2 dated 30 March 2007 submitted to the Labour Department (“Form 2”), the Defendant states inter alia that the Plaintiff suffered injury on duty (ie “執貨時，壓傷及扭傷腰部和腳”) on 8 March 2007.

15. On 23 January 2009, RLC on behalf of the Plaintiff commenced DCEC81/2009 (“EC Action”) against the Defendant (who was represented by LL) to claim employees’ compensation in respect of the Accident. The Application avers that “[on] the 8th March 2007 at [the Warehouse], the Applicant [ie the Plaintiff herein] was in the course of employment and under the instruction of the Respondent [ie the Defendant herein], when he was involved in an accident. As a result of the accident, the Applicant [ie the Plaintiff herein] sustained injury to his low back and right leg”.

16. By an Answer filed on 26 March 2009, the Defendant admitted that the Plaintiff “was an employee of the [Defendant] on 8th March 2007”, but did not admit the circumstances of the alleged accident.

17. By a Consent Order dated 27 July 2009, the Plaintiff entered interlocutory judgment against the Defendant in the EC Action leaving compensation to be assessed. On/about 30 December 2009, the Defendant made a sanctioned payment, which the Plaintiff accepted on 25 January 2010 in settlement of the whole of his claim in the EC Action.

V. BACKGROUND – COMMON LAW PROCEEDINGS

18. On 28 December 2009, RLC on behalf of the Plaintiff issued a pre-action letter to the Defendant (with copy to the Defendant’s insurer) in respect of the Plaintiff’s claim for common law damages as a result of the Accident (“Pre-action Letter”). In such letter, RLC states inter alia that whilst the Plaintiff was unloading the Carton at the Warehouse on 8 March 2007 he was knocked down by a trolley or fork-lift truck, fell to the ground and suffered personal injuries.

19. On 11 January 2010, the Defendant forwarded the Pre-action Letter to the insurer. On 16 January 2010, LL urged RLC to withhold legal action pending investigation of the Plaintiff’s claim. On 2 February 2010, LL asked RLC why the Plaintiff would be knocked down by a trolley or a fork-lift truck as alleged. Inter partes discussion/correspondence eventually resulted in the nomination of single joint psychiatric and urology experts and in arrangements for them to medically exmaine the Plaintiff.

20. On 5 March 2010, RLC served the Writ of Summons on LL. On 7 April 2010, the Plaintiff filed his pleadings and medical reports. On 23 June 2010, after obtaining an extension of time, the Defendant filed its Defence which avers inter alia that “Ah Ching” is Wong Suk Ching and an employee and/or agent of the Defendant’s independent contractor BLC. On 28 June 2010, RLC considered that BLC should be joined as a further defendant in the present proceedings and asked LL for information about BLC.

21. According to the business registration search record dated 29 June 2010 (“BR Record”), BLC previously carried on transportation business at an address in Tsuen Wan, and Law was its former sole proprietor. The BR Record further shows that BLC commenced and ceased business on 28 August 2003 and 31 July 2009 respectively.

22. On 6 July 2010, LL gave RLC the Chinese name of BLC, but RLC complained this was insufficient and asked whether BLC was the sub-contractor referred to in the Defence. On 24 July 2010, LL gave BLC’s correspondence address in Tsuen Wan as known to the Defendant to RLC.

23. On 8 July 2010, RLC wrote to inform Law formerly trading as BLC about the Accident and the pleadings herein, and asked for information/ documents as to (a) whether BLC was the Defendant’s sub-contractor for pick and pack service at the Warehouse on 8 March...

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