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

Sattar K.a. v Goodrich Transportation (Hk) Ltd And Another

Judgment Cited authorities 2 Cited in 1 Precedent Map Related
Vincent
Judgment Date21 December 2018
Neutral Citation[2018] HKDC 1510
Judgement NumberDCPI2105/2016
Citation[2019] 1 HKLRD 538
Year2018
Subject MatterPersonal Injuries Action
CourtDistrict Court (Hong Kong)
DCPI2105/2016 SATTAR K.A. v. GOODRICH TRANSPORTATION (HK) LTD AND ANOTHER

DCPI 2105/2016

[2018] HKDC 1510

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 2015 OF 2016

--------------------

BETWEEN
SATTAR K.A. Plaintiff
and
GOODRICH TRANSPORTATION (HK) LIMITED 1st Defendant
“K” LINE LOGISTICS (HONG KONG) LIMITED 2nd Defendant

--------------------

Coram: Deputy District Judge Phoebe Man in Court
Dates of Hearing: 4 & 5 December 2018
Date of Judgment: 21 December 2018

--------------------------

JUDGMENT

--------------------------

Background

1. This is a personal injuries action in which the plaintiff sues the 1st defendant (“Goodrich”) and 2nd defendant (“K Line”) for damages for personal injuries suffered arising out of and in the course of his employment.

2. Goodrich is a Hong Kong company carrying on a logistics business. It is the registered owner of a vehicle bearing the registration number EW8969. K Line is a Hong Kong company carrying on logistics business. One of its major businesses is the sub-contracting of delivery orders.

3. At the material time, Goodrich was engaged by K Line as a sub-contractor for the transportation of 5 pallets of goods from the Airport Freight Forwarding Centre to Nan Lung Warehouse in Kwai Chung. Goodrich was one of the subcontractors that K Line frequently engaged to sub-contract delivery orders.

4. It is the plaintiff’s case that he was employed by Goodrich as a worker responsible for delivery of goods in Hong Kong. On 18 October 2013, he was assigned to deliver goods to a warehouse in Kwai Chung together with a Mr Cheung, a director of Goodrich. The plaintiff was instructed to unload goods from EW8969 with Mr Cheung. Whilst the plaintiff was performing his duties on the tailboard, the goods fell down suddenly and he tried to move away and fell to the ground (the “Accident”). As a result, the plaintiff says he sustained injuries at his right ankle.

5. The plaintiff says the Accident was caused by or contributed by the negligence on the part of Goodrich and K Line, and/or the breach of the implied terms of contract of employment and/or breach of statutory duties under the Occupational Safety and Health Ordinance (Cap 509) on the part of Goodrich.

6. Goodrich was absent at the trial. In fact, it had never filed any acknowledgment of service. However, no default judgment was entered against Goodrich.

7. In essence, the plaintiff says that Goodrich and K Line were negligent in failing to take all reasonable precautions for his safety.

8. K Line denies the Accident occurred as a result of its negligence. In particular, K Line denies any duty of care under common law to the plaintiff. K Line also denies owing the plaintiff any duty of care under the statutes.

9. K Line filed a notice of contribution & indemnity to claim full indemnity against Goodrich should the plaintiff succeed in claiming against K Line.

The Accident

10. There was no serious challenge by K Line to the fact that the Accident did happen and that the plaintiff did sustain injuries. K Line also did not pursue its claims of contributory negligence against the plaintiff.

11. I have seen the demeanor of the plaintiff when he gave evidence on the Accident and other aspects of the case. I find him to be a truthful witness. He was consistent in his evidence and did not shy away from answering questions which were disadvantageous to his claim. I accept his evidence and hold that the Accident did occur in the manner described by him in his evidence.

The plaintiff’s case against Goodrich

12. Goodrich did not appear at the trial. The court thus needs to consider if the plaintiff had proved his case against Goodrich on liability and quantum.

13. The plaintiff’s case is that Goodrich is the employer of the plaintiff. K Line agrees and says liability, if any, should be attributed to Goodrich as the plaintiff’s employer.

14. The plaintiff gave clear and consistent evidence on his employment relationship with Goodrich. He started working for Goodrich on 26 April 2012 pursuant to an oral contract. The terms of employment were that he needed to work from 6 am to 2 pm, 6 days a week. He would be paid HK$10,000 in cash every month. He did not need to bring equipment to work. Usually he would pick up goods from K Line and deliver them to different places. In the absence of any challenge to his evidence in this regard, I accept the plaintiff’s evidence and rule that the plaintiff was the employee of Goodrich at the time of the Accident.

15. I accept the plaintiff’s case against Goodrich that it owed duties of care and statutory duties under the Occupational Health & Safety Ordinance (Cap 59) as his employer.

16. The failure of Goodrich to maintain a safe system of work and environment had caused the Accident and Goodrich is thus liable for the damages that the plaintiff sustained.

Does K Line owe a duty of care to the plaintiff?

17. The main issues raised by the plaintiff’s claim against K Line in negligence are whether there was a duty of care owed by K Line to the plaintiff, breach of that duty and causation.

18. The plaintiff’s case against K Line on negligence is premised on K Line’s failure to supervise Goodrich, and its failure to engage a competent subcontractor.

19. An employee of a sub-contractor is not privy to the contract between the sub-contractor and the principal contractor. In the absence of contractual obligation, the principal contractor does not owe an employee of its sub-contractor any contractual duty of care for his safety. The duty under the law of negligence, if any, arises under the neighbourhood principle as a result of the relationship between the parties. Whether a duty of care is owed under the law of negligence depends very much on foreseeability, proximity and whether it would be fair, just and reasonable to impose a duty of care. In Caparo Industries Plc v Dickman and Others [1990] 2 AC 605, Lord Bridge of Harwich said:-

“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope.”

20. In the case of Ng Tat Kuen v Tam Che Fu (unreported, HCPI 896/2013, 26/10/2015), To J summarized the Caparo principle as adopted by the Court of Final Appeal in Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming [2011] 2 HKLRD 223:-

“In that case, Bokhary PJ referred to various subsequent authorities explaining Caparo. He said that these three elements of foreseeability, proximity and whether it would be fair, just and reasonable are just convenient labels. There is no real demarcation between them and they shade into each other. They may be seen as an umbrella covering a number of disparate circumstances in which the relationship between the parties is so close that it is just and reasonable to impose a duty of care. This is a question of value judgment. An important consideration is the danger to life and limb, where personal safety of the person affected is at stake. This is particularly so where the person affected is in a vulnerable position. His Lordship concluded that ultimately it is necessary to stand back and take a holistic view of foreseeability, proximity and the need to be satisfied that it would be fair, just and reasonable to impose a duty of care. Considerations of fairness, justice and reasonableness were an intrinsic element of the duty of care and could be employed to ground the imposition of a duty where no such duty had previously existed, or where a duty had previously been denied. Where the danger was to life and limb and personal safety is at stake, the standard of care demanded is high and involved legal policy.”

21. Whether a duty of care was owed by K Line to the plaintiff has to be considered against the background:-

(a) K Line contracted its delivery orders to Goodrich. K Line is a true principal contractor in the sense that they engage subcontractors, including Goodrich, to carry out their business.

(b) The plaintiff was an employee of Goodrich engaged in the performance of K Line’s business. The plaintiff was the employee of Goodrich engaged in transportation and delivery work.

(c) There was no contractual relationship between the plaintiff and K Line.

(d) The Accident arose in the course of unloading goods from EW8969 to the Kwai Chung Warehouse.

(e) K Line was not involved in the unloading of the goods and it had no control over how they were unloaded.

(f) K Line did not provide equipment for Goodrich or the plaintiff.

(g) The registered owner of EW8969 is Goodrich and as such is in charge of its maintenance.

(h) The goods to be delivered were packed and loaded onto EW8969 by Goodrich’s staff.

(i) K Line is not the occupier of the Kwai Chung Warehouse.

22. I consider the fact that K Line is a true principal contractor as an important one (in the sense...

To continue reading

Request your trial
1 cases
  • Chiu Yuen Yuen v Buckingham Banquet Ltd T/a Buckingham Restaurant
    • Hong Kong
    • District Court (Hong Kong)
    • 25 July 2019
    ...the plaintiff was the case of Sattar K.A. v Goodrich Transportation (HK) Limited & “K” Line Logistics (Hong Kong) Limited DCPI 2105/2016 [2018] HKDC 1510 (“the Sattar 59. In the Sattar Case, the plaintiff’s right ankle was injured. X-ray of his angle showed a fracture of the right lower fib......

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