Including a wrong defendant in an action could lead to serious consequences
Introduction
When a plaintiff suffers injuries from an accident involving the operation of machines and seeks damages from multiple defendants based on negligence, duty of care, and occupiers’ liability, how should the liabilities among the occupier of the premise, the manager of the premise and the employer of the inflicting worker be assessed? Recently, in the case of Man Pui Shing v International Paper Manufacturing & Distribution Ltd and Others [2025] HKDC 16, the District Court ruled in favour of the plaintiff against the managers of the premises and the employer of the inflicting worker, but held that the mere occupier of the premises was not liable and ordered the plaintiff to pay its costs.
Background
Parties
The Plaintiff (“P”) sustained injuries from an accident when he was hit by a reversing forklift driven by Ma Kam Fook (“Ma”) at a recycling workshop in Hong Kong. The 1st Defendant (“D1”) was the tenant of the premises. The 2nd Defendant (“D2”) was the manager of the premises and the employer of Ma. The 3rd Defendant (“D3”) was a shareholder of D2 and involved in the management and operations of the premises.
Parties’ positions
P claimed against all the Defendants (collectively, “Ds”) on the basis of negligence and/or breach of common law duty of care, and breach of occupier’s liability under section 7 of the Occupational Safety and Health Ordinance (Cap. 509) (the “Ordinance”), for failing to provide or maintain plant and systems, the ingress and egress that are reasonably practicable, safe and without risks to health to persons working at the workplace.
D1 admitted that it was an occupier within the meaning of the Ordinance; but argued that it was not liable since the accident resulted from the operation of the forklift rather than the conditions of the premises. D1 also argued that (1) D2, which managed the premises, owned the machines and employed Ma, had full control over the use and occupation of the premises; and (2) D3 assumed responsibility with D2 by managing and using the premises jointly with D2. As such, D1 sought full indemnity and/or contribution from D2 and D3.
D2 admitted that it was the employer of Ma, the manager of the premises and the occupier within the meaning of the Ordinance and owed a duty of care to P. D3 denied that it was an occupier of the premises and owed any duty of care to P. Both D2 and D3 alleged that P was contributorily negligent.
Analysis
In relation to the Ds’ liabilities towards P, the Court identified and analysed, among others, the following issues:
1. How the accident occurred;
Only P and Ma were present at the premises during the accident. P delivered waste materials and was struck by a reversing forklift driven by Ma after using the restroom. P maintained a clear view of both the truck and forklift but could not avoid the collision due to the forklift’s speed and lack of alarms.
2. Whether D1, D2 and/or D3 were occupiers of the premises, and if so, whether they breached the occupier’s liabilities under section 7 of the Ordinance;
In assessing the liability of D1, D2, and D3 under the Ordinance, the Court defined “occupier” as anyone with control over the premises. Both D1 and D2 conceded their status as occupiers, while D3 denied it. However, the Court held that D3 operated a recycling business at the premises, with evidence of receipts and its licensing for waste importation indicating its significant control over the premises.
The Court ruled that all Ds were occupiers, but all Ds were not liable under section 7 of the Ordinance given that the accident was attributed to the operation of the forklift rather than deficiencies in the conditions or safety measures of the premises.
3. Whether D1, D2 and/or D3 owed and breached a duty of care to P; and
The Court considered whether to impose a duty of care based on (1) foreseeability and (2) opportunities for supervision.
For D1’s liabilities, the Court ruled that since D1 had sublet the premises to D2 and sold all machines to D2, D1 had no control over Ma, the forklift or the system of work at the premises and there was no sufficient foreseeability or proximity.
For D2’s liabilities, D2 admitted its breach of duty of care towards P.
For D3’s liabilities, the Court found that D3 operated the recycling business on the premises and had the power to control the operations of the forklift, so it must be reasonably foreseeable to D3 that the improper operation of the forklifts could cause injury to P. As such, the Court ruled that there was sufficient foreseeability and proximity to impose a duty of care on D3.
4. Whether P was contributorily negligent.
The burden of establishing contributory negligence lied on Ds, who must show that P failed to take ordinary care for their safety and that this failure contributed to the accident. The Court distinguished this case from a previous case where the plaintiff was found contributorily negligent because he consciously gambled on the direction of the forklift and should have kept a proper look out for the approaching forklifting. The Court ruled that P had clear visibility of the forklift and could not have avoided being hit due to its high speed, so P was not contributorily negligent.
The Court awarded judgment in favour of P against D2 and D3 in the sum of HK$552,172.98 plus interest and costs, but dismissed P’s claim against D1 and ordered P to pay D1’s costs of the main action.
Takeaway
This case demonstrates the importance of suing the right defendant. Although P’s claim is successful against D2 and D3, P is ordered to pay D1’s costs because his claim against D1 is dismissed. It is likely a substantial part of the judgment sum awarded to P will be deducted to pay D1’s costs. Therefore, it is very important to sue the right defendants, or otherwise plaintiffs risk bearing the costs and suffering loss even if they win their cases.
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Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors. |
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Published by ONC Lawyers © 2025 |
