Lam Pak Leung v Ip Tsz Ping

Court of First Instance
Personal Injuries Action No. 95 of 2013
Anthony Chan J
3 June 2015

Negligence – duty of care – whether owed duty of care to injured employee to properly control traffic in terminal

P, a labourer employed by D2, was injured while unloading goods from a container in a freight terminal leased to D3, which carried out a logistics business there. D1, also employed by D2, stopped a forklift truck he was driving on a level platform 2–3 feet from P and, without switching off the engine, got out. A few seconds later, the truck suddenly moved forward and its right fork penetrated P’s right leg from behind. Most of the terminal operations were subcontracted by D3 to D2, who was contractually bound to bear sole responsibility. D2’s 11 regular workers had no team manager and they were supervised and instructed about loading/unloading operations by D3’s two most senior office staff in the terminal. D2 was paid according to the volume of cargo handled and D2’s workers were required to process up to 38 containers a day. Vehicular traffic in the terminal was not controlled. In personal injury proceedings brought by P against Ds, D1–2 were adjudged liable for the accident. At issue was whether D3 was liable in negligence.

Held, giving judgment on liability to P against D3 with damages to be assessed, that:

  • A number of factors had contributed to the accident: the truck was left unattended by D1 with its engine running, more likely than not in the forward gear, very close to P; and the forks were raised. Even if there were no explanation for the truck moving, P would be entitled to rely on the principle of res ipsa loquitur.
  • Given D3’s involvement in the operations at the terminal, in particular its ability to exercise some degree of control over D2’s workers who were working for it (albeit indirectly), there was a sufficient degree of proximity between D3 and P such that the former had a duty of care over the latter.
  • The imposition of such a duty was just and reasonable. Although D3 endeavoured to subcontract much of the operations and responsibility over workers to D2, day-to-day operations remained mostly under D3’s control. P’s wages came from D3’s business (albeit indirectly) and he had to observe instructions from its staff.
  • D3 was liable to P for the loss and damage suffered resulting from the accident. D3 was in breach of its duty to properly control traffic in the loading/unloading area to ensure the safety of workers like P. If D3 had fulfilled its duty by having a traffic controller, it was more probable than not that the accident would have been avoided, since the controller would not have allowed D1 to leave his truck unattended with an idling engine in very close proximity to P, especially when he was liable to be hurt by the elevated forks.

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